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Navigating Divorce Under SRPMIC’s Updated Code · Asked & Answered - your community podcast for all things legal

• 0:00
  Kierstin: So this is where our stories diverge because so it's so crazy because I kinda have some similar story, and we've never shared this.
• 0:09
  Alane: We've never talked about this at all.
• 0:10
  Kierstin: Yeah. So the thing is here,
• 0:12
  Kierstin: what I've learned today is if you want advice about this, you send them to Alane. You don't send them to me.
• 0:23
  Alane: Hi, everyone. Welcome to Asked and Answered. This is Alane And today, Kierstin is here with me, and we are gonna talk about divorce. Kierstin there's some new divorce laws in the community.
• 0:37
  Yes?
• 0:38
  Kierstin: Yes.
• 0:38
  Alane: So heavy stuff, obviously. I think, you know, everyone sort of knows what divorce means, but maybe they don't want to talk about it or they don't even think to talk about it with an attorney until suddenly they really need an attorney. When someone decides that they need a divorce, what is the first thing they should do legally?
• 0:57
  Kierstin: Oh, legally, what should they do? I think that they should probably, because you have the benefit of reaching out to legal services office, you could reach out to legal services, do an intake, and start the process in talking with an advocate or attorney, and then kind of going through sort of that piece of advice, because there's a lot that you would want to sort out with regards to the conversation with the advocate or attorney. I think sometimes what people may not do is have the conversation about the potential of thinking of it, and they can sit on that information, right? They don't have to act right away. And I think that seems to be a little bit of confusion.
• 1:45
  Sometimes people just, if I go talk to someone then I have to start the process or not.
• 1:51
  Alane: Or I
• 1:51
  have to completely decide before I go talk to someone.
• 1:54
  Kierstin: Right, exactly. So I just think that if you have some ideas of potentially that this is a path that you might be exploring or something that you want more information on, then it's a good idea to talk to an advocate or attorney because there could be things you didn't consider or there could be things that you want to prepare for filing a divorce. Or maybe you're just not there yet. Maybe you're like, You know what? I'm going to try it one more time with my spouse and see if we can work through that.
• 2:27
  And that's okay. You can just call legal services for advice only. You don't have to do filing of petition immediately.
• 2:36
  Alane: That's really good to know. Does your office help people just with divorces in community court, or do you help with state court divorces as well?
• 2:44
  Kierstin: So we help with state court cases. If you're going to state court, there's a reason perhaps well, we always talk about jurisdiction and which court has jurisdiction. Does tribal court have jurisdiction or state court has jurisdiction? And so the attorney or advocate is making assessments. And then based on that assessment, once we gather information, we can tell you, Okay, this is going to be a state court matter.
• 3:11
  And then just to answer your original question, you know, because sometimes I forget what that question was, is that we will file in state court and or tribal court, whichever one that person needs to file in. So we have an attorney that would handle the state court matter, and then we have an attorney or advocate that could handle the tribal court matter.
• 3:32
  Alane: Would you say that there are pros and cons to filing for divorce in the state versus in the tribe or in the tribe versus in the state? Or is it really just it's going to be the same either way? Just depends on who ends up having jurisdiction? Like are there reasons that people might hope they're eligible to file in the tribe?
• 3:50
  Kierstin: Well, I would say until recently I would have said, Yeah, there is. But because we dun dun dun, have a new code
• 3:59
  change that has been put in effect, I think the answer is no. And the reason I say that is because one of the biggest code changes that I think we have that I think is super exciting for me is that you no longer have to state fault for getting a divorce.
• 4:21
  Alane: In the tribe now.
• 4:22
  Kierstin: In the tribe. So if you were to have filed a divorce prior to this code change, you would have to have allegations of abandonment or allegations of the individual had done something negative and that's why you're wanting to leave the relationship. But now we have the ability to file a divorce based on oh, I can't say the name. Okay, well, irretrievably broken.
• 4:59
  Alane: There we go.
• 5:00
  Kierstin: The marriage is irretrievably broken or both parties desire to live separate or apart. And so I think that's awesome. There's no proof of wrongdoing required anymore.
• 5:12
  Alane: And it brings the community court back into alignment with most other jurisdictions in the country, right, where you don't have to assign blame, you don't have to necessarily air all of your dirty laundry, you can just, We can't get along anymore. We would like to not be married. And that's all you have to say.
• 5:28
  Kierstin: Absolutely. I think it definitely was some of the reasons why individuals didn't want to file at all with the divorce because they would have to, you know, provide that information. And so sometimes people didn't want to go into court and provide that information or those details or share those details.
• 5:49
  Alane: Like really personal details.
• 5:50
  Kierstin: Right, really personal details. I mean, and you know a lot of people, so you may not want to have the court staff hear what those details were and so forth. So like I said earlier, when you had asked the question, was there a pro or con to filing in state? I think that prior to this change, was a pro in filing for the state because you could file for those reasons, but in the community you had to have a basis. Now you don't have to have that basis.
• 6:19
  And so I think that's a big improvement and big shift in change.
• 6:22
  Alane: I agree. It just allows for some privacy and just makes it go more smoothly probably. Yeah. Are there any other, you know, aside from obviously that pretty big paradigm shift, are there any other really sizable changes that you think people would want to be aware of?
• 6:39
  Kierstin: Yeah. So I think there's a lot of changes that we actually did make. We added some new language with regards to property division. We added some new language with regards to preliminary injunctions, new language with regards to debts, new language with regards to spousal maintenance. So there is a lot of things that have been changed.
• 7:04
  But before I get into maybe some of those nitty gritties of those particular areas, the other sort of second big change that I think we made was focus on settlement. And what I mean by that, in the old model, you would file your petition, you'd get a response, and then the court would set it for an evidence you're hearing, and then you're needing to prepare in that way. And people settled. Not that people weren't settling. This provides a, in the code, there's language as far as having settlement conference and having some specific hearings to discuss settlement and to discuss them pretty fast early on.
• 7:44
  Alane: So it's just like more overtly encouraged now to try to reach an agreement rather than have everything be acrimonious from start to finish.
• 7:51
  Kierstin: Right. Don't want it to be I mean, divorce is already hard. And we don't want it to be an adversarial process right away. No one wants to probably be here. You know, when we set up, we got married and we thought this was going to last forever.
• 8:09
  And so this is not a very easy process for people. So we tried to build in having settlement, which that's also probably hard too because now you guys are probably not in the best
• 8:22
  Alane: place Now you have to reach an agreement with the person that you want to not live with anymore. But
• 8:29
  Kierstin: we're having within that settlement piece to have a mediator or someone that would help you work through that. Because I think that families do better on figuring out how division should happen, meaning property division or spousal maintenance if they figure it out together versus having a judge.
• 8:51
  Alane: Yeah. That was gonna be my next question, actually. Like, for people who maybe are contemplating divorce or who may be at the very beginning stages of divorce, what is it that courts or mediators are going to be looking at to determine who gets what? Like, what's fair? What do people look at when they're trying to figure that out?
• 9:08
  Kierstin: Yeah. So, you know, one of the things I would say that a lot of people misunderstand is there a lot of times during consultations that I have when we meet with clients, they always talk about all the wrongdoing that the person had done. Well, person cheated, she cheated, he cheated, it doesn't matter. Someone cheated or someone did this, someone took money they overspent or they charged credit cards, they didn't know.
• 9:36
  Alane: And it's kind of part of that cathartic process that they want to talk about it a lot, right?
• 9:39
  Kierstin: For sure. But it doesn't really have a basis on the division. It's definitely a conversation to be had. It's definitely, let me get this off my chest. But to your question, how does that impact your division?
• 9:54
  It doesn't really impact the division. You and that's maybe an unfortunate truth that people don't like to hear because I want him to pay. Right. I'm so mad. The best years of my life.
• 10:09
  He needs to pay.
• 10:11
  Alane: I think that's understandable, right?
• 10:12
  Kierstin: For sure.
• 10:13
  Alane: If you've built a home with someone and they did something awful, you don't want them to reap the benefits of all those years, right? I totally understand it. But the law sees it differently, right?
• 10:20
  Kierstin: Right. The law is going to be neutral, unfortunately, in that sort of situation. So he is going to get equal, the amount of whatever we put in together. So there is this theory of equitable division, meaning that it may not be $50 here, dollars 50 here, but it's a division of perhaps you have your stuff and whatever stuff you have together. Maybe he gets the piano, maybe you get the dining room table.
• 10:51
  And that might not be equal in dollar amounts, but it feels equitable to you as a as you know, between the two parties or whatever.
• 11:02
  Alane: That does make sense. Do you think that divorce you know, when you talk to some people about it, like it just drags on and on. Do you think that divorce has to be long and contentious? Or do you think that these new especially with the new code changes regarding settlement, do you think that there are ways to make it, if not pleasant, at least less unpleasant.
• 11:23
  Kierstin: Is there ways to make divorce unpleasant? Think No,
• 11:26
  Alane: less unpleasant. Less unpleasant. It makes itself unpleasant. Are there things encourage people to do to sort of make it go faster and make it, you know, so that it's not as traumatic as maybe it
• 11:43
  Kierstin: Yeah. I think there's a couple of things within that sort of maybe what you're trying
• 11:49
  to get at is, which I mentioned as far as doing settlement and doing settlement with the other party or whatever, I think that is definitely a better way to make it contentious. But you also have to have two reasonable people come and have those conversations. So sometimes not everybody is going to be in that reasonable piece, which then I think it also helps to have an advocate or attorney representing you because maybe you have a lot of feelings within that divorce context. Like I was just suggesting I want him to pay, jokingly as far as my spouse. But if I had the attorney representing me and they're going to be more neutral, they're not emotionally involved with this individual, So they can talk to the attorney and or advocate and work out, like, you know, that's kind of my job as the attorney to say, Hey, what is it that you are wanting?
• 12:51
  Like, what property are you wanting? If there's spousal maintenance to be paid, what's the spousal maintenance look like? Having that conversation with my attorney and advocate, and then they go and have the conversation with the other, the adverse, my ex or whatever, and then they work, they talk about what could they do to settle this, then I think that's the best thing.
• 13:14
  Alane: And I think to that point, like, if you have two unrepresented individuals, obviously they're not people who are able to communicate well. If they were able to communicate well, maybe it wouldn't be ending divorce, right? Right. And so if you have these two people who, you know, emotions are high, it seems like maybe there's a greater risk that that devolves into, like, a fight rather than if you are communicating all those things to your attorney who's then sort of taking the emotion out of it and just communicating facts, maybe that does just in and of itself help it
• 13:43
  Kierstin: to go faster. So the other thing too, as I want to sort of say to this question before we move on to another one, is that I think when I was talking about settlement, I don't want to say that the court has nothing, no value, because they definitely have a value and they can do that. But with that being said, I do think that when you get into the trial experience, when you have to go to court and you have to testify to all of these, know, your life as far as how much are you making, what is the property, how that should be divided. And even though maybe those aren't necessarily hard things, think just going through it can be very hurtful as far as that process goes. And then ultimately the judge is making that decision about how this is going to all shake down.
• 14:35
  How much are you going to get in spousal maintenance? How is your property going to be divided? How are your debts going to be divided? And that isn't fun. And so, that's why I think talking through those settlement pieces is super helpful because if you don't have to do the trial experience, I think it's better for all parties.
• 14:56
  Alane: I think even the judges probably would acknowledge that at the end of the day, this is your life and your spouse or ex spouse's life. You've lived it together, and you are the ones best equipped to decide who gets the dining table, who gets this car, who gets to stay in the house. The judges will do it if they have to. And the law allows them to do it if they have to. But I think even the judges would say, no, settlement is not to speak for them, but it seems like, you know, even the judges would probably agree, no, we should only enter into this if we have to.
• 15:30
  If they can agree, then they should agree.
• 15:31
  Kierstin: Yeah, I agree. And you know, to be real, honestly, most of the biggest conflicts that I would say we're having is when it comes to the custody stuff, right? When it comes to the kids, who's going to have what visitation, who's going have what parenting time. So those are hard conversations and those are not fun because for the first time in your life, you're having to decide how your child is going to spend time with you. And that's not fun.
• 16:00
  Especially since-
• 16:01
  Alane: And away from you for probably the first time ever, like big chunks of time away from one parent when that's never happened to them before.
• 16:07
  Kierstin: Right, right, absolutely. So, you know, and that's pretty much, I would say that's the biggest difficult conversations to have as far as with parties. But like you said, it's really good to work it out if you can or come up with some sort of plans that you're comfortable with and maybe that you're not comfortable with. And that's why sometimes you just have to go to trial because there are times where even though you're being reasonable or it could be ending up where you need to just go to trial.
• 16:37
  Alane: Going back to the, I guess, first set of questions I was asking about just choosing jurisdiction or deciding jurisdiction, not choosing, I guess. When it comes to divorce in Salt River in community court, are we talking about just community members? Are we talking about just Native Americans? Are we talking about just people who were married community court? What divorce cases would fall under the community court's jurisdiction?
• 17:02
  Kierstin: So, you know, it's complicated, and probably you may have touched on Separate podcast. Well, you may have touched on it a little bit in the beginning when I had mentioned jurisdiction, right? And maybe it wasn't clear within that sort of context because I didn't go into all the jurisdiction pieces. But if the court has jurisdiction over the native or non native or community member, then they can hear the case. Most often or most basic, the court's going to have jurisdiction over any community member just in general, point blank period.
• 17:44
  But over a non native or a native individual that doesn't have connections with the tribe, then the court needs to do a deeper dive and figure out have they lived in the community? How long have they lived within the community? What are their connections to the community aside from maybe this marriage? Because maybe someone just got married in community court as a non native, but then never came back into the community, lived in Mesa, then the court wouldn't have jurisdiction over those parties. Maybe they lived in California and they just recently moved back a month ago.
• 18:21
  You're looking at time frames as well. So just in general, courts can't file or you a person can't file in courts unless they've lived in that place for six months or more. So it's
• 18:34
  Alane: kind of a combination of, are you a community member? Are you a Native American? Do you live in the community? How long have you lived in the community? And then probably if you have children, are they community member children?
• 18:44
  Like, just kind of a combination of all of the above.
• 18:46
  Kierstin: Right. So there's so many. There's so much analysis that's going on in there. And sometimes we believe that we could have jurisdiction to have the tribal court hear the matter, but then tribal court may say otherwise. They may feel like, No, we don't have jurisdiction, and that's where we're going to have to go to state court instead.
• 19:06
  Alane: Kirsten, at the beginning, you mentioned temporary injunctions. What are those?
• 19:10
  Kierstin: Yeah. So I think that's when you had asked as far as like some things that you might want to talk about with your attorney or advocate with regards to getting prepared for filing for a divorce case, I think preliminary research is pretty important in that you can't transfer assets. Or so if you had a shared bank account with or if I had a shared bank account with my spouse, then that kind of freezes the account. You can't go and spend money out of that joint account while you're going through the divorce, which is the preliminary injunction. So I think that's kind of important for people to know.
• 19:46
  Another sort of part of that preliminary injunction is I can't sell a vehicle if that was a joint, if we owned that, basically any property that we Like your
• 19:56
  Alane: house, they can't sell your house out from under you.
• 19:57
  Kierstin: You can't sell the house. And then also with kids too, you can't move to another state, you can't move to out of a 100 miles. So there's a lot of things that, it stops you, is kind of in layman terms what it means, stops you from acting or doing certain things. So once you file that divorce, that goes automatically into effect. And those are things that you cannot do.
• 20:21
  And if you do them, then when I had talked about earlier, the court isn't really looking at, you know, holding anybody accountable for like maybe cheating or whatever. They can hold you accountable for not following that preliminary injunction. So the court could award different monies or different assets in a different way if you have actually disobeyed that in preliminary injunction.
• 20:48
  Alane: So like for example, if you take $10,000 out of your joint checking account and use it to do whatever, the ultimate amount that that spouse receives in the final settlement might be decreased by $10,000 to make up for that? Correct. Okay.
• 21:01
  Kierstin: Right. So I think that's super important. And it's very new. We did not have that. So I think that in this new code chain, it's important for people to know that that was added to the code.
• 21:12
  Alane: So I know that, you know, we talked a little bit about, you know, just divorce in general and child custody and other things that can and parenting time, other things that can come as a result of getting divorced. I think the code also now covers spousal maintenance. Yeah. Tell us about that.
• 21:29
  Kierstin: What is that? Yeah, so spousal maintenance we had in the code previously. However, we didn't have any formula on how to calculate spousal maintenance. So now we have a formula on how to calculate spousal maintenance, which I think is also pretty big. Like I said, maybe I wasn't maybe as vocal in the beginning, but there's a lot of big changes in this And having a spousal maintenance calculator is going to make it a little more consistent amongst parties.
• 21:58
  You know, sometimes you hear about like I got X amount in spousal maintenance and then another party got, you know, a different sort of amount. So this calculator will neutralize that to make sure that it's based on years that you're married and the property and what everybody's coming to the table with. I mean spousal maintenance is going to vary from party to party, but it shouldn't vary from judge to judge, say. And so having a calculator equalizes that.
• 22:24
  Alane: And just ensures that similarly situated people get a similarly situated result. Right. That makes sense. So my last question is kind of an open ended one, but are there things that you see that people do other than just, you know, not being reasonable or wanting to just sort of punish their ex partner, are there tangible things that you see that people do that can hurt them in the long run when it comes to a divorce? Like, there common mistakes that people make either in the filing process or even before the filing process.
• 22:56
  And counter to that, are there things that people can do to sort of just get a more positive result? Yeah. I'm talking about things like maybe prenuptial agreements or
• 23:05
  Kierstin: I things like was like, I don't know where she's going with this. Thought I answered this question, but this is good. Prenuptial, yeah. Interesting enough, which I wasn't even highlighting that as a change, we actually did add that to the code as well. So we have prenuptial and postnuptial agreements to be recognized.
• 23:28
  Yeah, so that would definitely be something that individuals should do and consider, especially if there are a lot assets that they have, that they're bringing to the table. A prenuptial agreement is definitely something someone can do to protect those assets. You know, one of the other things that I thought was interesting and talked about in council is maybe having a conversation about this, Why should I get married? You know, which is part of the prenuptial agreement sort of conversation. Is this a good idea?
• 24:01
  And what are some of the factors that are coming together when we're coming together as a couple?
• 24:07
  Alane: Like aside from the social aspect of the wedding and the marriage.
• 24:12
  Kierstin: All that fun stuff. Practical are things of the benefits of getting married and the non benefits of getting married? I'm not going to say that I don't think marriage is a good idea. I definitely think marriage can be a good idea, but you know, it's a lot of work and there's a lot of things that can go wrong and then, you know, make it a very big struggle. So anyhow, I think that is some of the things that individuals could do.
• 24:41
  Alane: That makes sense. So to our listeners, this has obviously been just a really 40,000 foot view of the divorce process. We will be doing more episodes, doing deeper dives on things like spousal maintenance and the calculator that that Kirsten mentioned, parenting time and child custody, just more information about those specific matters. But for today, that is all we have. Thank you so much for joining us and for being a part of this maybe sometimes awkward but important conversation.
• 25:12
  If there's something that you would like us to cover, whether it's about divorce, custody, or anything else, please send us your questions at askedandanswered@srpmicnsn.gov. And we're here to try to make legal information, what, easy and Maybe not able
• 25:31
  Kierstin: a get But I think sometimes little we do not hit that out of the market.
• 25:35
  Alane: It's interesting to us, I guess. Maybe that's all we can say sometimes. But even if it's not interesting, hopefully, it's at least helpful. Yes. With that, have a good day.
• 25:44
  See you next time.
• 25:45
  Kierstin: Thank you.