The following accompaniment to the article "Early Resolution for Family Law Cases in Alaska's Courts" by Stacey Marz was prepared for the Spring/Summer 2014 issue of the Alaska Justice Forum, but could not be included in the print edition for reasons of space.
Issues in an ERP Case
Below is a brief outline of how the attorneys and judges approach various issues in a case at an ERP hearing. The attorneys need to address with the clients all of the matters that the judge needs to review in order to make a determination and issue final orders in the case. Depending on the case type, this means discussing custody, child support, and property and debt allocation.
Cases involving child custody. For a divorce involving children or a custody case between unmarried parents, the attorneys discuss custody related issues: decision making, parenting time, and child support. Throughout the process, the attorneys are mindful of domestic violence concerns.
Divorce cases involving marital property and debt allocation. Volunteer attorneys advising clients in divorce cases work with the client to understand what marital property and debt exists. Once the attorneys and clients identify the marital property and debt, they negotiate a fair and equitable allocation according to the statutory factors, including specific values of assets, bills, and loan amounts.
Addressing potential enforcement issues. Volunteer attorneys have been very helpful in this area. For example, if one parent has been unreliable in having parenting time with the children and the other parent is concerned about the parent always being late, the agreement may include language to address that "if the parent is more than 15 minutes late to pick up the children without notifying the other parent, the parenting time will not happen." Similarly, if one spouse is supposed to refinance a loan/mortgage into his/her name, the agreement may state, for example, "if wife is unable to refinance the car loan into her name within 60 days, they agree to sell the vehicle and split the proceeds, if any."
Partial settlements. If the parties reach a partial settlement, the attorney can make a clear statement on the record about what is settled and outline the remaining issues so the trial judge and parties know how to prepare for the subsequent proceeding.
Additional documentary evidence needed. If additional documentary evidence is needed, an attorney's explanation to the client of why this is important can help the client actually complete the task. For example, if the parties have not prepared a Qualified Domestic Relations Order (QDRO), which is necessary to divide a retirement account, or talked to the mortgage company about refinancing a loan before their ERP hearing, they can still reach agreement on the issues, but will need to complete the required tasks before the matter can be finalized. In matters that have been largely settled and only require additional documentary evidence, it is often appropriate to reschedule the case for a future ERP hearing. The attorney's explanation of these types of issues keeps the case proceeding as it should through the system.
Need for an evidentiary hearing. If there is a dispute over an issue of fact in the case, the matter needs to be scheduled for a future evidentiary hearing. The attorney's ability to give the basis for the dispute and make the request helps the court and parties. For example, if the father in a custody matter questions if he is really the biological father, the attorney can bring the issue of paternity establishment to the court's attention. The ERP judge can order DNA testing, and the parties can potentially return to a later ERP hearing once paternity is known.
"Test drive" agreements. If the parties are struggling or would benefit from "trying out" a parenting schedule, the attorneys may suggest the parents agree to an interim arrangement, including child support, and come back to ERP at a future date to finalize the agreement. Often after building trust, and seeing how a parenting schedule works, the parents return to ERP after a defined time appropriate to the circumstances of the case (e.g., three months, six months, etc.), to finalize or change the interim schedule.
Modifications. Volunteer attorneys explain the legal basis for modifying custody and child support orders. Once a client understands the legal standards to modify custody (change of circumstances) and child support (15% change in support order amount or change in parenting plan), they are able to focus on their children's needs for the immediate time period. This is important so clients know that agreements are not permanent, and they are aware of the need to come back to ERP if things change in their lives.
Legal advice. Attorneys advise clients about the importance of legal advice and how to seek additional legal advice if warranted. The list of attorneys in the Alaska Bar Association's Unbundled Legal Services Section whose practice includes limited scope representation is available as a handout. Sometimes issues may arise that are too complicated to move forward to resolution at ERP. In some cases, the parties may be discussing whether to file for bankruptcy, and a referral to a bankruptcy attorney is essential to make sure the parties do not adversely affect their interests by proceeding with the property and debt division at that time.