Katrina’s situation really bothers me. How is that when a person seems to be most in need of help, there is no help? Could/should she be representing herself in this custody battle? Was she being realistic being her own divorce attorney?
I called Leslie Matthews, managing partner with the Denver-based law firm of Matthews & Matthews which specializes in family law and I outlined Katrina’s situation. Obviously, we don’t have all the facts of the case so please bear that in mind. And, since family law is a state law issue, Leslie’s answers are based on Colorado law. Even with this, I believe Leslie’s response very worthy of sharing. While you’re reading this, remember that although Katrina has filed for divorce, it is not yet final.
What would be one reason Katrina has no access to her child?
The policy in courts in Colorado is that it is in the best interests of the child to have a relationship with both parents, unless there is endangerment either physically or endangerment to their development or their emotional development. So to get a court order that says the mother has no visitation there would have to have been evidence presented that she was somehow a danger to the child.
Is it important to have attorney?
In this situation it is imperative to have an attorney. Imperative. There needs to be an advocate other yourself, in front of the court since there is a claim that you are somehow unfit or somehow a danger to the child. There needs to be expert testimony to refute that and that is very difficult to do when you’re the subject of the issue at hand.
It requires not only a lawyer but a lawyer who really knows what they are doing to defend against this type of claim. And what’s required are psychological evaluations, parental evaluations, perhaps a child and family investigator would need to be brought into this case to be able to show what the truth of the matter is. It’s a relatively complex matter that takes time and takes money.
What if you have no money and you’re not working?
If you’re within the poverty level, you can file an affidavit to show you are at poverty level to have the court appoint experts for you that the state will pay for. But a) you’ve got to prove that poverty level and b) the people you’re going to be assigned to aren’t going to be the same as the people you pay for.
Proving poverty would be very difficult if you were still married and you would need an attorney probably to go in and say, he’s withholding funds.
Would an attorney take the case on a contingency basis?
One of the things in family law is that we are not allowed to do contingency fee work so we are never allowed to do an agreement where we’re paid only if you’re paid. The public policy reason for it, is that in a family law case the focus of the case is supposed to be on what is the best interest of the children not whether or not you’re going to make money on the case.
What about Pro Bono?
There are pro bono cases, there’s also the family law section of the Bar and they can assist you with hooking you up with an attorney who would perhaps take your case pro bono or other means for getting a very low cost attorney.
Are there such things as payment plans?
You can probably find an attorney who will not take a large retainer upfront but who will do some sort of payment plan. It doesn’t sound like she’s in a position to even be doing a payment plan. She has no money coming in.
What suggestions do you have for coming up with a retainer?
You borrow money, you do whatever you need to do to get that initial retainer, you get an attorney working on your case. I have seen many people do many things. I’ve seen one woman, her name was on the mortgage and she went out and she took an equity loan without getting her husband’s signature and the bank allowed that. I have seen people borrow from family. Down the line, the court would award attorney’s fees to the woman and she would be able to pay her family back.
You have a retainer, then what?
The first order of business is to get temporary maintenance, so you get your husband paying the bills he should be paying, giving his wife the money she needs to support herself in the interim, before the final hearing, you get the money flowing again so he doesn’t have an unfair advantage.
It’s more than an unfair advantage, it’s truly a tactic of bullying, to leave a woman in a position of what we call being starved out. It’s a horrendous thing for a man to do, really horrendous. It really is disconcerting for me that he would be working to remove custody, which the only way he would be able to do that is claiming that she’s not mentally able to care for their child, and at the same time he’s not supporting her financially.
Those two things don’t jive well in a court. He’s saying, ‘this person is mentally unstable, so mentally unstable that my child can’t be with her but I’m going to leave her without funds at all for her care and get off her insurance.’ Those are all aggressively negative tactics.
The Divorce Coach Says
My conversation with Leslie confirmed my fears – Katrina could be damaging her case trying to represent herself. She needs to come up with a retainer – Leslie estimates $5,000 should be enough. However, even that could be a challenge for someone whose family is no longer talking to them.
BTW – the law is not gender specific and if the roles were reversed, Leslie’s advice to a man cut-off from the marital finances would be just the same.
Katrina’s situation is a prime example of why Leslie urges anyone, man or woman, who is considering divorce to make sure they prepare for divorce by having a bank account in their own name and funds to cover about three months living expenses.
And many women will say my husband will never do that and I always say to people, I understand and these are your choices to make but there have been many cases where people are very blindsided, their husband behaves in a way they have never seen before, completely aberrant behavior, behavior that is shocking.
If you needed a retainer, would you be able to come up with $5,000? Who would you turn to? Are you thinking about divorce? Have you setup your own back account? How long could you survive if your spouse cut off your access to the household funds?