Family Law

Our firm handles a full range of family law matters for clients throughout Idaho and Washington; from complex marital dissolution proceedings to contested child custody matters, including relocation. Our knowledge, experience and training in family law are supported by our ability to adjust our styles to the needs of our clients. We are skilled in litigation, as well as negotiation.

Muriel M. Burke and Kerwin Bennett practices includes family law where they advise and represent clients facing all types of family law matters including property division and child custody disputes.

When a divorce settlement involves significant income-producing community property such as a business, a farm, or ranch land, care must be taken to identify and value the assets properly and to fashion an arrangement that will allow it to remain viable. Both Muriel M. Burke and Kerwin Bennett have extensive experience in complex community property litigation and can provide representation to protect a client’s rights and interests in those matters.

If you are going through a transition such as divorce or modification of a child custody agreement, you are facing emotional and financial risks. It is important that you seek sound legal counsel at the earliest possible time in order to protect your economic status and your relationship with your children.

Whatever the situation, at James, Vernon & Weeks, we have the experience to handle all of your family law needs.

We assist clients in all aspects of the law relating to the needs of today's families, including, but not limited to:

Preparing for your initial consultation:

The ability of your attorney to evaluate your case is determined by the quality and accuracy of the information that you provide to your attorney. If you are considering divorce start gathering the following documents. Please keep in mind that very few clients are able to gather all of this information prior to the first meeting.

  1. Current paycheck stubs for both spouses.
  2. Last year’s state (if applicable) and federal income tax returns.
  3. Copies of titles to vehicles or vehicle registrations (including automobiles, boats, trailers, motorcycles, etc.).
  4. Any descriptions of job benefits provided by employers, for both spouses.
  5. Pension, profit sharing, and retirement information, including yearly statements showing value of interest in the plan and a copy of the plan summary.
  6. Life, disability, and health insurance policies.
  7. Statements from checking and savings accounts, stock certificates, bonds, and savings certificates.
  8. A list of current debts (mortgages, charge accounts, dental, hospital or doctor bills, furniture payments, car payments, etc.) Include a copy of the last statement and the date of the last payment.
  9. If you own your own business, a copy of the business income and B&O tax records.
  10. Any written community property agreement you have with your spouse.
  11. A list of your questions so that the attorney has an opportunity to address all of your concerns.

Your initial consultation is an opportunity for you and the attorney to meet and discuss your case. During this discussion you can decide whether or not you are comfortable with the attorney and our firm. This is your chance to ask questions and see how the lawyer evaluates your case. The more information you provide at the consultation, the better the lawyer can educate you about your case. You can expect the attorney to discuss the application of the law to your situation, the strengths and weaknesses of your case, timelines for your case, provide a range of cost involved, and explain the billing process and office procedures.

Because we provide a high degree of attention to each client, we are not able to accept all of the cases brought to us. If we decide that we cannot provide you with the best representation, we will gladly provide the names of several attorneys that may be better suited for your case.

Helpful Articles

Divorce & Legal Separation - An Overview

Contemplating divorce is always difficult. Whether you are sure you want to end your marriage or are still considering your options, it helps to learn the basics of divorce law and process. Should you conclude that divorce is necessary, it is very important that you seek the assistance of an experienced family law attorney. Involving a knowledgeable family law attorney as soon as possible in the divorce process is one of the best ways to preserve your own long-term financial and emotional health.

When there is little or no marital property, no children, no issues of alimony or spousal maintenance, amicable spouses can usually obtain a quick divorce. Most divorces, however, are different and far more complex. The typical divorce can involve a union of a number of years with considerable marital property, both personal property and real estate, children, family businesses, large or concealed debts, trust funds, real estate in other states, joint and separate accounts, investments, insurance, pensions, and other assets. In these complex situations, the parties often cannot divide their property on their own and therefore may require attorney assistance and court involvement for its ultimate division.

Whether you should end your marriage is one of the most important and difficult decisions you will ever encounter. It is important to approach the question from a rational perspective rather than solely an emotional one. In many ways it is a business decision that requires you to evaluate many issues. Once you review this list of questions, you may rethink the direction you are headed, or you will be better prepared to move forward while working with an attorney.

Child Support

Although the required child support level for any situation is set by formulas in Idaho statutes, the courts do have a limited amount of discretion in setting the level of child support. The amount of child support that is set at the time of the separation or divorce, though, is not set for all time. Washington state also has a statutory system of providing for child support.

Life’s fortunes can vary widely, and a job change, a layoff, or a temporary or permanent disability can cause a responsible party’s income to change. In these situations, Muriel M. Burke or Kerwin Bennett can go to court on behalf of a client responsible for support or the receiver of support, to obtain modifications in child support requirements.

In Idaho, child support is calculated pursuant to the Idaho Child Support Guidelines, using the gross incomes of both parents. “Gross income” is defined broadly under the guidelines and can include funds that might not be considered income for tax purposes. There are two different formulas used, depending upon the division of time between the two parents. The basic amount of child support is then adjusted in light of the cost of any health insurance coverage provided by one parent for the minor child and then again in light of which parent is awarded the right to claim the tax exemption for the minor child.

Custody & Visitation

Idaho and Washington law both require courts to decide child custody questions “in the best interests of the child.” In the absence of clear reasons to decide otherwise, this usually means joint legal custody and joint physical custody. The following are some common definitions:

“Legal custody” means the right to participate in major decisions affecting the minor child, such as decisions about the child’s schooling, major medical procedures, and religious upbringing. “Physical custody” is what most people would ordinarily think of when hearing the word “custody,” i.e., where the child resides and the division of time between the households of each parent.

“Joint legal custody” means the right to be consulted about major decisions affecting the minor child and the right to receive information and documents from third-parties (such as schools and medical service providers). In most cases, parents are awarded joint legal custody. “Sole legal custody” is usually obtained only upon a showing of unfitness on the part of the other parent (perhaps founded upon a drug or alcohol problem or some significant criminal conviction) or upon a showing that the other parent has not been involved in the life of the child.

“Joint physical custody” is defined by Idaho statute as “an order awarding each of the parent’s significant periods of time in which a child resides with or is under the care and supervision of each of the parents or parties.” It can, but usually does not, involve an equal sharing of time between the parents.

When a child is involved in a divorce, visitation rights are usually determined by the courts. Visitation rights can be negotiated with the courts and family lawyers. Visitation rights are simply the time allotted to each of the significant people in the child’s life.

Visitation rights have been set up in many court systems to help keep rights and privileges that are for both the parent and the child or children. Visitation rights are determined by the courts and family lawyers, the parents, and possibly even a guardian ad litem. Visitation rights are in the best interest of the child. There are standard visitation rights, which often consist of alternating holidays and weekends.

Usually, visitation rights are considered and discussed during court concerning the non-custodial parent of the child or children. A non-custodial parent is the parent who does not have physical custody of the child/children that are going through the process of the divorce or separation. In some cases, there is an agreement between both parents, but often the courts will decide what is in the best interest of the child, whether the non-custodial parent or grandparent may see the child in question, and if it is or is not in the child’s/children’s best interest. Usually, in such cases there is concern that child abuse and/or domestic violence may be involved. This is considered a high conflict case. Often, in these visitation cases, there are supervised visits. During these supervised visits there will be a social worker, psychologist, guardian ad litem, or other third party present during visitation time.

Modifications

Divorce decrees regarding child support, custody or visitation is not necessarily permanent. If there is a substantial change in circumstances, one party can petition the court for modification of the custody or child support order. At James Vernon & Weeks our family law attorneys assist parents in petitions for post-decree modification.

Generally, the court considers a change in income of 10% or more to be substantial. If one parent has been laid off from work, has taken a cut in overtime, or has received a promotion or pay increase, it is appropriate to petition for modification of the order for child support. The court might also consider a modification based on a change in the child's needs.

A modification of custody might result from parental relocation out of Idaho, a change indicated by the child's developmental needs, or a charge by the non-custodial parent that the custodial parent is unfit.

Whether the issue is modification of child custody, child support or visitation, the court is charged with the responsibility of making a decision that is in the best interests of the child.

As divorcing families continue with life, the course of life can require changes in child custody arrangements. A new job schedule or relocation can cause a parent to seek a change in the custody stipulation. A change in a parent’s lifestyle, a substance abuse problem, or physical abuse may require a corresponding change in that parent’s child custody rights. In these situations, our family law attorneys can go to court to change child custody arrangements, including obtaining a custody evaluation.

Whatever your child custody or visitation concerns, our family law attorneys will work to protect your rights and achieve a practical child custody agreement or stipulation.

Pro Se Divorce/ Doing it Yourself

Some clients can do their own legal work including divorce and custody cases without an attorney. The better question is whether you should do so. There are forms for sale at forms stores, on the internet and at the courthouse for do-it-yourself divorce cases and you can get a set of free forms just like the ones you can purchase at the courthouse by visiting http://www.courtselfhelp.idaho.gov/ or www.freeidahoforms.com. The attorneys at James, Vernon & Weeks do not recommend that you do a do-it-yourself divorce if there is real estate (a home or land) involved, children involved, if either party has retirement rights at their employment or if you have financial problems that may lead to you filing bankruptcy. The issues and potential legal problems in the future are too great to not have the advice of an attorney.

Mediation & Alterternative Dispute Resolution

In divorce and child custody cases in particular, the adversarial process has increased tensions between the parties that do not abate even when the process is complete. Non-adversarial alternatives, such as mandatory mediation, which can save time and money and preserve relationships to the extent possible. Mediation and other Alternative Dispute Resolution (ADR) processes provide an option for those who prefer to stay out of court. ADR provides many potential advantages for most cases, including reduced cost, faster resolution, less emotional stress, the ability to construct solutions that are outside of the authority of the courts.

In Kootenai County, the magistrate courts are current engaged in a process called “Judicial Arbitration.” Certain Magistrate Judges will arbitrate your case for another Magistrate Judge. In this situation, there are no witness testimony and the rules of civil procedure are waived by the parties prior to engaging in this process. Because your rights under the rules of civil procedure are waived, it is important to have an experienced attorney represent you in this type of alternative dispute resolution.

In the judicial arbitration process, the court will hear from both parties and will review any and all evidence that the party would like to submit to the court, including but not limited to out of court statements by other people. In this process, the individual parties are allowed to tell the judge their “story” and what they wish to see occur. This process is limited to custody and real property issues that are not complex. Should your case be complex, other methods may have to be utilized prior to judicial arbitration.

James, Vernon & Weeks, P.A.

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