The Curse of Neutrality

 

Recently I wrote some articles on my theory of the five tenets, and one of those tenets is being positive. After the article posted a few people contacted me telling me how hard they thought it was to be positive, and perhaps I was not being realistic given the circumstances.

My first thought was, “Really? People other than my mom read these articles?” But after the surprise wore off, I started to think, and maybe re-think, about being positive. To be honest, this is really still a thought in progress, but I do see the point. Being positive is very difficult, especially if there is an established track record of negativity. However, being positive is important, even more so when negativity is the “norm.” But more on that in a minute.

Changing behaviors for me is very difficult, and my guess is I am not alone, given the number of self-help books, websites, apps, and podcasts available addressing every aspect of mental health and physical health imaginable. Research shows how continuous thought, positive or negative, establishes pathways in our brains to the point it becomes a habit. For me, I think about a dirt road and ruts worn deeply enough the wheels automatically slide into them when you drive that road, and just how hard it is to steer out of those ruts if you want to change direction.

What the research talks about is how we can change the way we think, changing those ruts, if we want to. That we are not destined to be or think a certain way. I think the research is interesting (fascinating, really), and I would encourage you to review it and use what you like. The key to the idea though seems to be we can change if we want to, and I think there are three aspects to that thought. First, while we might say we want to change, and maybe we truly mean it, I think the question comes down to how bad do we want it? Secondly, if we want to change, how do we go about it? Third, how do we keep the change in place? To make it even more fun, it does not happen overnight, or maybe even over the years, if that is a term. It is going to take time.

So what do we do in the meantime? What do we do when we just do not have it in us to be positive? Is that a failure? Is this really going to work? Do I want it to work? I really just want it to stop!

Okay, okay. Breathe. In, out. In, out. In, out.

I think it will work, but for those days when positivity is not an option, or at least not an immediate option, how about going halfway? How about consciously making the decision to not do something positive or negative? Granted, that will be difficult in and of itself, but maybe it will not be as difficult that we revert to the negative. Maybe trying to put off the response, for now, to allow yourself time to process, and get to a place where you can be positive. Not to delay, not to use the time to frustrate the other person or seem like you are stalling, but to take some actual time to think about what your negative response would be, why you do not want to make that response, and then possibly reframe it into something positive.

If the “norm” referenced above is to respond negatively, and if the “norm” has not been working, why not try something different? Granted, being positive, and actually meaning it may not be possible. And really, that is okay. If I do not feel positive, then I should not have to manufacture that feeling just so someone else can be comfortable. All that will do is make me resentful of the communication and likely make me seem disingenuous later if I try to take it back. And to be fair they would be right; I mean, I said X, and they relied upon X, so X should be the rule.

But if we take a step back, tell the other person we need some time to consider a response, and possibly even the reason we need the time, ultimately everyone should be better off. The other person is probably not going to like giving that time, at least at the outset. Maybe they have an agenda or timeline, and by not responding as quickly as they wanted, we are throwing that timeline off. Understandable, but everyone’s timeline should be respected. If good communication is to be had, then a little grace needs to be shown when someone needs more time to think and formulate a response. And really, the other person probably has been thinking and formulating their statement for some time, so it would only be fair you have the same time to process and respond, right? Because if not, then maybe the other person is not really wanting to communicate openly and fairly. If they cannot see why you would need time, and how that time might actually help the process move quicker if you can come to an agreement, then they may not have your best interests in mind.

It’s tough. Not responding when a thought is clearly formed in your mind, especially when the other person is seemingly wrong, possibly aggressive, or just plain being a jerk. And maybe your first response will be right. Maybe it will “win” the argument, and the other person will have a lightbulb moment of clarity. That is not my experience though. I need a little time to give my best response. That is what the other person deserves, but just as importantly, it is what I deserve.

 


Tony A. Potter is a Member of Ward Potter LLC, where he uses his experiences in general civil, trial, and appellate practice to represent clients. Tony received his Juris Doctorate from Washburn School of Law in 1994 and has been continually licensed to practice law in Kansas since 1995. Tony is a member of the Kansas Bar Association, the Wichita Bar Association, the Northwest Kansas Bar Association, and the Chair of the Wichita Bar Association Family Law Committee. His commitment to his clients was also recognized in 2018 when he was acknowledged as an “AV” attorney, peer-rated for high professional achievement by Martindale-Hubbell, and he enjoys a 10.0 rating from the Avvo attorney website. Contact Tony

Ward Potter LLC is a family law firm located in Wichita, Kansas. Ward Potter handles divorce, child custody, parenting time, prenuptial and postnuptial agreements, visitation by grandparents, and paternity cases. The firm also provides litigation alternatives such as collaborative family law, mediation, and arbitration. The mission of Ward Potter LLC is to guide clients through changes in their families with empathy, excellence, and expertise. We strive to calm chaos and focus on the resolution, not the battle.

The Five Tenets: Tenet Five - Grace

 

The last tenant: showing grace.

For me, the thing with grace is the troubling part where it comes off as patronizing, rehearsed, or even false. Lately I have heard a lot about grace. “Thank you for showing me some grace,” etc. That is usually very nice to hear, and I am sure many times the statement is heartfelt. The problem is what might look like grace is often just plain old common decency. Maybe that’s the real problem though: common decency is not that common, and what should be just mannerly is now seen as “grace.” Okay, I will put my soapbox away now.

The grace I think about when considering these tenets is not genteel. It is not second nature or just small talk. In this context grace should really mean taking a breath, calming the anger/anxiety the situation has aroused in you, maybe not saying what you really (really) want to say, and deciding to extend that person some goodwill. To rise above the anger/anxiety and communicate with the other person in a way that may not seem natural, if not completely opposite, from what I might think the situation calls for in response.

None of these tenets are easy, and we could spend a considerable amount of time arguing over which is the most difficult. But I suspect they are each the hardest, and most likely it depends on the situation at the time. Speaking with kindness, holding a boundary, being honest, and being positive seem to be more centered on what I will receive. How I am communicating so I can feel better about my side of the communication. Showing grace seems different in that I am extending something to someone who by my estimation may not deserve what is being offered to them. As I think about it though, that mindset is faulty for two reasons.

First, I need to remember just because I am offering someone something does not mean they want it or will even see it as something of value. Maybe this grace I am giving them is not seen as grace at all but a false or patronizing statement, if they can even really hear what I am saying at all. If that is the case, then this grace is nothing more than lip service and not the positive statement I believe it to be.

Second, and more importantly, I think showing grace really is ultimately for me. While it might seem like grace to them and they may appreciate it for how it was intended, I still receive the benefit of being mindful, saying something hopefully positive, hopefully honest, and hopefully kind. I still get the chance to be what I think of as a better person. Not better than the other person, but a better version of myself. If the other person reciprocates and our future communications are positive, then I receive that benefit as well. Like an investment in a more positive future.

When it comes to showing grace, for me it helps to try and think about how I would want this person to communicate with me if the roles were reversed. In my mind it is sort of like a teeter-totter. For us both to have fun we must push off about the same amount so we each get to go as high as possible, or to make sure we don’t bruise our butts. If I am showing the other person grace, then hopefully they will show me grace and we each get something positive out of the conversation. The more positive the conversation, the more likely future conversations will be positive. And the next thing you know, smooth teeter-tottering.

That said, first we must get on the teeter-totter. And that is really the issue, isn’t it? The split-second between the nasty thing they just said and how I will respond? How can I wedge grace in there to keep the anger/anxiety from taking over and saying what first comes to mind? In that split second, if I am mindful and practicing the other four tenets, then I think the chances that grace will be what comes out of my mouth is good. A split second does not seem like long, but if I was previously able to say something based upon an angry thought without hesitation, then logically I should be able to do the same with a statement of grace. I think it depends upon how much I practice, and how much I want to change. But in truth, sometimes the angry statement still comes out, and that’s okay. Sometimes nasty statements are met with an angry response, and perhaps deservedly so. Just don’t be too hard on yourself. You can always try again, and again, and again. That’s the great/terrible thing about life; it gives us so many tries.

My best advice? Take a deep breath, maybe even a few, really think about what you want to say and why and try to show some grace. And as you do that, show some grace to yourself. I mean truly, I think we can all use some grace, and we should begin with ourselves. Once we learn how to do that, maybe it will be easier to show that same grace to others. Thanks for reading.

 


Tony A. Potter is a Member of Ward Potter LLC, where he uses his experiences in general civil, trial, and appellate practice to represent clients. Tony received his Juris Doctorate from Washburn School of Law in 1994 and has been continually licensed to practice law in Kansas since 1995. Tony is a member of the Kansas Bar Association, the Wichita Bar Association, the Northwest Kansas Bar Association, and the Chair of the Wichita Bar Association Family Law Committee. His commitment to his clients was also recognized in 2018 when he was acknowledged as an “AV” attorney, peer-rated for high professional achievement by Martindale-Hubbell, and he enjoys a 10.0 rating from the Avvo attorney website. Contact Tony

Ward Potter LLC is a family law firm located in Wichita, Kansas. Ward Potter handles divorce, child custody, parenting time, prenuptial and postnuptial agreements, visitation by grandparents, and paternity cases. The firm also provides litigation alternatives such as collaborative family law, mediation, and arbitration. The mission of Ward Potter LLC is to guide clients through changes in their families with empathy, excellence, and expertise. We strive to calm chaos and focus on the resolution, not the battle.

The Five Tenets: Tenet Four - Honesty

 

Couple of disclaimers: 1) I tend to put a lot of stock in honesty, and 2) I do not tend to put a lot of stock in “my truth.” The first was how I was raised, and the second is my own opinion. Nature and nurture.

To start, I think we need to be sure we talk about the difference between being honest and being truthful. We should always try to be both, but the truth of something can be different than how we are honest. Case in point: I can honestly believe I am right about a certain subject, but that does not mean my feeling is truthful. Sometimes the difference can get lost. Sometimes the “truth” is something we have told ourselves so many times and for so long the actual truth gets lost. We need to be mindful of understanding what we see as the truth may contradict, sometimes drastically, from what the other person sees as the truth.

That is where honesty comes in. I think honesty is based more upon feelings and beliefs than upon facts. Honesty centers upon how I am feeling, reacting, and communicating with a person at a given time, and based upon a given subject. Truth factors into the conversation, but if I am angry, happy, or sad about something the fact it may not be true does not cancel those feelings. I might seem more than a little irrational, and it is at that point I should probably take a break from communicating, but I am being honest about my feelings in the communication.

The other side of honesty is when I am communicating with someone, if I want the communication to remain positive and productive, then I need to recognize their honesty might not be truth. I need to recognize the communication for what it is and consider my response carefully. If I am trying to understand their position and communicate my position back to them, then I need to be sure to recognize their feelings. Granted, that assumes the person is genuinely communicating with me, and I can understand the communication, but that burden falls upon both of us. Both parties must be honest if progress is to occur.

With honesty being my goal, I think it helps to take a moment and organize my thoughts. Maybe I am truly angry, and if so, while anger is a necessary emotion and probably honest, I might not be in the best frame of mind to convey what I am thinking. In my experience at least, yelling at the person I am communicating with and making sure they understand I am angry is not productive. Usually, they disengage or get angry back and make it very clear why I am wrong. Because as I have said, I cannot remember a smart thing I said when I was angry. On those rare occasions that I get angry I tend to make as much sense as algebra (please don’t get me started).

So, I take a moment, organize my thoughts, and feel like I can honestly communicate. Or maybe I need another moment, or hour, or day or week. That part really is important: if I do not feel ready to communicate using these tenets then it would be best if I ask for more time. To be fair, I should not use this as a delay tactic, and if I agreed to discuss a certain topic at a certain time, then I need to be prepared. But if I truly need some additional time to organize my thoughts and be able to communicate honestly about an issue then I should ask for that time. On the other hand, if that time is asked of me, then I should give it if possible.

Assuming I have those thoughts organized and am ready to communicate honestly, then what I find to be helpful is acknowledging what I am feeling by simply starting the statement with “I feel” and moving forward. It probably should not be “I feel you are being a jerk”, but something more like “I am feeling anxious because of how we are communicating.” Taking the focus off the other person, stating my feeling, accepting my part in the communication, and honestly conveying what is going on inside my head is the first step.

The second step might be a response saying something like “Thank you for sharing that with me. For my side, I am feeling upset because of this situation as well.”, and back and forth it goes. For me, the frustrating part of these types of communications is at first it seems as though nothing is really being said. Maybe so. But maybe the other person needs to convey those feelings to really, honestly communicate. Maybe I did not understand what those feelings were, and if not, how can I understand their point of view? If we really take a moment to think about it, isn’t that the point of almost all miscommunications? If we only took a few (hundred) steps back and started off by identifying the source of the emotion, perhaps we could work towards a solution.

I know, I know, that seems ideal, and possibly even unrealistic. After all, I think the times we are truly honest is when we first establish trust. If we do not trust the person then the likelihood of open, honest communication is probably slim. And trust is hard. Maybe one of the hardest things to develop or re-establish. But we must start somewhere. Somebody must take the first step. Somebody has to start by saying “this is the idea I am trying to convey, and why it is important to me.” When that happens, I think one of two responses occurs, both of which are positive.

First, the other person will recognize the honesty and trust, and reciprocate. Second, the person will not recognize the honesty or trust, the response will be combative, and I can practice my other four tenets. I start to build a good communication path, or I identify a closed path. I think both are better than not being honest. But again, I put a lot of stock in honesty. I would even go as far as saying that without it you cannot have real communication, and without real communication nothing will truly be solved. Thanks for reading.

 


Tony A. Potter is a Member of Ward Potter LLC, where he uses his experiences in general civil, trial, and appellate practice to represent clients. Tony received his Juris Doctorate from Washburn School of Law in 1994 and has been continually licensed to practice law in Kansas since 1995. Tony is a member of the Kansas Bar Association, the Wichita Bar Association, the Northwest Kansas Bar Association, and the Chair of the Wichita Bar Association Family Law Committee. His commitment to his clients was also recognized in 2018 when he was acknowledged as an “AV” attorney, peer-rated for high professional achievement by Martindale-Hubbell, and he enjoys a 10.0 rating from the Avvo attorney website. Contact Tony

Ward Potter LLC is a family law firm located in Wichita, Kansas. Ward Potter handles divorce, child custody, parenting time, prenuptial and postnuptial agreements, visitation by grandparents, and paternity cases. The firm also provides litigation alternatives such as collaborative family law, mediation, and arbitration. The mission of Ward Potter LLC is to guide clients through changes in their families with empathy, excellence, and expertise. We strive to calm chaos and focus on the resolution, not the battle.

The Five Tenets: Tenet Three- Being Positive

 

Being positive.

Before I get started on this, I want to address toxic positivity. The definition seems to be no matter the circumstances, a person maintains a positive attitude. The pushback is being positive all the time overrides emotions somehow lessening them. I think the pushback is well intended, but misplaced because:

  1. “Toxic” is a strong word. I could see “overly positive”, “too positive”, or even “annoyingly positive”. But toxic implies that something is poisonous or harmful;
  2. We must remember that if someone is being positive that is their emotion. Our reaction to their positivity is our emotion; and
  3. Simply labeling something as “toxic positivity” seems like an easy way to dismiss a point of view.

The above tends to ignore the benefit of what being positive can do to help your mindset and your communication. My grandma would have said throwing out the baby with the bathwater, and she was much brighter than me so I will not try to improve on the saying. I will simply say someone that seems to be positive all the time probably is not, and if we believe humans genuinely try to be good people most of the time, then perhaps we should give the person some grace (more on that later) and see the benefit in what they are saying. You know, to approach it with positivity?

Now granted, the idea of showing gratitude daily and looking for the good in every situation can be daunting. And for me, writing down those gratitudes each day can become a chore. I mean, you can only write “sunshine, happiness and hope” so many times. It can be counter-productive because we are not reflecting on the situation. Added to that, we are not giving ourselves the chance to feel positive and negative emotions, both of which help us regulate how we communicate.

Okay, so now that we have the preliminaries out of the way, how about we address the tenet of being positive? I think the idea should be that if we try to approach the situation with a good attitude, not expecting the worst, or see a bad intent behind someone’s actions, then perhaps we have a chance to see the situation from a different angle. To think about something critically instead of having a pre-formed opinion, and not allow ourselves to decide beforehand what was a problem before will continue to be a problem now.

That last part is tough. History can be a difficult thing to get past if we can get past certain parts of it at all. I consider myself a student of history but lately I am coming to realize that I was a part of the history that was made. If that history has a negative connection for me, it might have a negative connection for the other person too. Perhaps the best way to deal with it is to examine it, look at the role I had in that negative connection, and see if there is anything I can do so it does not continue to be negative. Because, again, if it was not working before, why continue to do it that way? That’s just dumb, and I don’t want to feel dumb. It makes me think negatively about myself and others.

The tricky part is changing how we think. We talked before about mindset, and how we train our minds over the years to think one way or another. Added to that we have our brain chemistry and the physicality of how the brain works; always trying to save us from dangerous situations. But most of the time the difficult communication we are having with someone is not dangerous. It can be hard, emotionally upsetting, and not something that should continue. But maybe if we approached that conversation from a positive standpoint first and make sure we keep our boundaries (see how these all fit together?), then the communication does not degenerate to that point.

So, what can we do to be more positive? For me, these ideas seem to help:

The above is human nature and is usually not personal. Sometimes the other person is unable to get past their fears, wants, needs and agenda without first voicing them to you. They just need to say their piece. Not great, but it helps to think it is may not be directed at me. What is paramount is that their fears, wants, needs, and agenda are voiced. That they are heard, and that I hear them. Oftentimes it is not really whether I agree or not, but that I listened and heard what they said. Sometimes they end up talking themselves out of their own position.

If I respond negatively, I am likely to get negativity in return. That is an argument, not a discussion. Both have their place, but argument is convincing someone you are right by telling them why they are wrong. Most of us do not like being told why we are wrong and communicating with a negative attitude generally ensures it will not end well. When that happens, it can be difficult to get back to a place where communication and problem solving can occur.

For me, it is important to try and approach the communication with the idea things will work out. Maybe not work out perfectly or exactly how I want, but in the end, it will be okay. That is tough to sit with sometimes, especially when it feels like everything is coming apart, but please be patient.

That advice is hard to give, and harder to follow, but most of the time it works. It will take time and lots of practice. But it gets better. It will be okay. I am positive.


Tony A. Potter is a Member of Ward Potter LLC, where he uses his experiences in general civil, trial, and appellate practice to represent clients. Tony received his Juris Doctorate from Washburn School of Law in 1994 and has been continually licensed to practice law in Kansas since 1995. Tony is a member of the Kansas Bar Association, the Wichita Bar Association, the Northwest Kansas Bar Association, and the Chair of the Wichita Bar Association Family Law Committee. His commitment to his clients was also recognized in 2018 when he was acknowledged as an “AV” attorney, peer-rated for high professional achievement by Martindale-Hubbell, and he enjoys a 10.0 rating from the Avvo attorney website. Contact Tony

Ward Potter LLC is a family law firm located in Wichita, Kansas. Ward Potter handles divorce, child custody, parenting time, prenuptial and postnuptial agreements, visitation by grandparents, and paternity cases. The firm also provides litigation alternatives such as collaborative family law, mediation, and arbitration. The mission of Ward Potter LLC is to guide clients through changes in their families with empathy, excellence, and expertise. We strive to calm chaos and focus on the resolution, not the battle.

The Five Tenets: Tenet Two - Holding a Boundary

 

Now that you have mastered speaking with kindness and listening with kindness, it is time to tackle what I think is the most difficult tenet: holding a boundary. There are many different ways to describe holding a boundary, and the definition that works for you should be the one you follow. For me, it is deciding what I will (or will not) agree to or accept. Easy, right? Yeah, not so much.

It can be very hard to transition between when the boundary was set and then using the boundary. The difficulty can be the boundary may have been set at a time when you were in a different emotional state. For example, perhaps the boundary came from a place of anger or fear after a difficult conversation, and you decided that never again would you feel _______. But things calm down, you reconsider, a new confrontation begins, and old habits kick in. (Sigh).

Or, maybe you set your boundary at a time you were calm and collected, had a chance to observe the situation from an objective point of view, and determined how you would act next time. But then the next time comes, that calm you felt evaporates, and old habits kick in again. (Bigger sigh).

So, what good is having a boundary that is never enforced? Short answer: there is no good in having that boundary. Really, there is no boundary. It is good to be considerate, flexible, and open to discussion, but in my mind, a boundary is synonymous with a limit. Hopefully, I did what I could not to reach that boundary. I used my other tenets to try and work through the situation with the person I was dealing with, and we did not come close to the boundary. But if I tried all that I could think of, and I cannot resolve the situation with the other person (usually because they are being unreasonable), then there has to be a limit. Otherwise, what generally happens for me is I abandon my boundary and give in on the issue, thereby creating resentment and anger for myself. Usually, during these times, the issue comes back up and all the fun that was experienced in arguing about it before gets to be revisited. (Biggest sigh).

So perhaps some pointers are in order in determining your own boundaries. What works for me (most times) is:

If you are using the other tenets, then hopefully boundaries will not be at issue. You spoke with kindness, listened with kindness, you were positive, honest, and gracious. The rest should be easy, right? Maybe. Or, maybe the other person is not following the tenets, or not following them within your boundary. If so, then there needs to be a limit. Otherwise, patterns developed over the years will continue, and the issues that lead to problems communicating will probably persist.

To be sure we are clear: I know this hard. I struggle with this almost daily. Setting the boundary, setting the consequence, second-guessing myself, etc., is very hard. It will continue to be hard, especially in these types of communications. But as with speaking/listening with kindness, this tenet takes practice. For me, it takes the most practice, but I can say from experience when it works it is the most satisfying because I know that I did what I could to avoid the boundary, but I still held it when it became necessary.

It is important to remember holding a boundary is not a sign of failure, but instead, you were able to stay true to yourself. And that’s really the point: to make you feel positive about how you communicated during a difficult situation. Thanks again for reading.


Tony A. Potter is a Member of Ward Potter LLC, where he uses his experiences in general civil, trial, and appellate practice to represent clients. Tony received his Juris Doctorate from Washburn School of Law in 1994 and has been continually licensed to practice law in Kansas since 1995. Tony is a member of the Kansas Bar Association, the Wichita Bar Association, the Northwest Kansas Bar Association, and Chair of the Wichita Bar Association Family Law Committee. His commitment to his clients was also recognized in 2018 when he was acknowledged as a “AV” attorney, peer rated for high professional achievement by Martindale-Hubbell, and he enjoys a 10.0 rating from the Avvo attorney website. Contact Tony

Ward Potter LLC is a family law firm located in Wichita, Kansas. Ward Potter handles divorce, child custody, parenting time, prenuptial and postnuptial agreements, visitation by grandparents, and paternity cases. The firm also provides litigation alternatives such as collaborative family law, mediation and arbitration. The mission of Ward Potter LLC is to guide clients through changes in their families with empathy, excellence and expertise. We strive to calm chaos and focus on the resolution, not the battle.

The Five Tenets: Tenet One - Speaking & Listening with Kindness

 

Last time we addressed five tenets and how they can improve communication. The idea is using the tenets to shape how you communicate with someone and help focus the issue, and possibly avoid confrontation. To recap, the tenets are:

I am not sure the tenets can be prioritized because every situation and every person is different. But if we are looking for a first among equals, speaking and listening with kindness would win. So, I want to address those issues first as I think they will be useful in implementing the other tenets.

To be clear: I am not advocating practicing the tenets at all costs. Most of us have dealt with a person that, for whatever reason, refuses to be civil and reasonable. When dealing with that person, the best advice is to disengage, at least for a time. Odds are you are not arguing about whatever started the conversation, and old wounds that still have not healed are opened again. Sometimes, when faced with that situation, the toxicity of the conversation bleeds over to the person trying to be civil and reasonable, and then everyone is yelling. Do not fall into that trap. As kindly as you can end the conversation, with an agreement to communicate again when everyone has a chance to calm down.

How do we avoid those situations from becoming a situation? I think the first thing is to be kind, and let our actions and words demonstrate kindness. We are living in stressful times, but just because there is a global pandemic changing life as we know it on a daily basis it does not mean there will be no arguments as to who has parenting time this year for Memorial Day. If anything, the stress increases the chance of an argument, so it is imperative that you start out with kindness.

Speaking with kindness, at first glance, should be the easier of the two but I argue it isn’t. First, we have to get past the hurdle that the person you are communicating with is actually listening to you in the first place. Secondly, we have to be sure the person believes or at least is willing to consider, what you are saying. Lastly, we have to remember the first part of communication is usually the easiest. We have considered what to say, maybe even practiced what to say, but when we start talking and they start responding, most of our speech falls by the wayside. And that is when habits start to creep in.

Habits are the worst. They are a subliminal cue our brains have that causes us to behave in ways we may not even be aware of until it is too late. Damnit.

But habits can be broken. When we are trying to speak with kindness, we develop new habits. Some suggestions:

These ideas will take time to master, and they will be uncomfortable while you are working on them. My guess is you may not feel like giving the other person any kindness. But even if that is warranted, what is your goal? If the goal is to “win”, say what you want, don’t solve the problem, and maybe you will get to repeat what you said to a judge. But if the goal is to solve the problem, and communication is the issue, maybe it is time to try something different.

Listening with kindness should be easier, but it can be just as difficult. First, we have to break the habit of not “really” listening, and instead just waiting for our turn to talk. I know, what I have to say is super important, and what they are saying is just the same thing as last time, and if I don’t say this now, I might forget…. I get it. It’s hard. But the truth is unless you listen and hear what the other person is saying you cannot communicate effectively. Odds are they are doing the same thing back to you. So, there are two people talking, and no one listening. Think this problem is getting solved?

What is listening with kindness? There are different definitions: active listening, mindful listening, etc. I think it breaks down into two pieces: engaging with the person speaking, and then making sure you understand what they said before you respond. The first part can be difficult, but it really means you make eye contact, you keep breathing, you keep that smile on your face, and you try to convey you are invested in what they are saying. I know, tough right?

The second part is not difficult if you start off with: I understood you to say X. Is that right? Because either you understood what X was and now can respond. Or you did not understand X and it gives them a chance to restate or rephrase. What might be even more helpful is to ask for help. Can you explain this to me because I know it is important to you and I want to be sure I understand before I give you my response? Because in the end, most of the time, we all just want to be heard.

This tenet takes practice, and you should expect to fail. Habits do not break overnight, especially when faced with a stressful situation. But know working on this tenet will make communication better next time, and the next and the next until it becomes a habit. But the good kind, not the one that makes you want to bang your head against the wall. Thanks again for reading.


Tony A. Potter is a Member of Ward Potter LLC, where he uses his experiences in general civil, trial, and appellate practice to represent clients. Tony received his Juris Doctorate from Washburn School of Law in 1994 and has been continually licensed to practice law in Kansas since 1995. Tony is a member of the Kansas Bar Association, the Wichita Bar Association, the Northwest Kansas Bar Association, and Chair of the Wichita Bar Association Family Law Committee. His commitment to his clients was also recognized in 2018 when he was acknowledged as a “AV” attorney, peer rated for high professional achievement by Martindale-Hubbell, and he enjoys a 10.0 rating from the Avvo attorney website. Contact Tony

Ward Potter LLC is a family law firm located in Wichita, Kansas. Ward Potter handles divorce, child custody, parenting time, prenuptial and postnuptial agreements, visitation by grandparents, and paternity cases. The firm also provides litigation alternatives such as collaborative family law, mediation and arbitration. The mission of Ward Potter LLC is to guide clients through changes in their families with empathy, excellence and expertise. We strive to calm chaos and focus on the resolution, not the battle.

The Five Tenets: An Introduction

 

Warning: this might not be a legal article.

I don’t have any letters after my name (Ph.D., etc.) that give the following any scholarly weight. Granted, I took nine whole hours of psychology in college, but that was (gulp) 30 years ago and I don’t think I aced the classes. But, contrary to some opinions, I am a person and have dealt with other persons. And, after practicing family law for more than 25 years I come to the realization that while all cases are different, they all have a common theme: communication. Or more precisely, bad communication. Okay, maybe bad is too strong a word, but in my experience communication can always be better. That is probably true in all aspects of life, but a divorce or custody case is usually where months or years of faulty communication come to a head. After observing similar patterns for so many years, it seemed to me the best way to address the problem would be proactive.

I started thinking about why parties to a case, particularly a case that goes to trial, are so opposed to one and other. Granted, some of the blame goes to the lawyers. Lawyers can be bad communicators, which is odd given that is what we are paid to do, but it is true. Knowing the law, and being able to communicate that knowledge with clients, judges and other lawyers, are two separate issues. But lawyers cannot be totally to blame, and the fact is lawyers come into the situation after the problem already exists. After the communication has already broken down and created the problem.

If communication could/should be better, is there a model that could be followed in a family law case? One that might work better in such a stressful situation? I think so. Again, I am not a psychologist, and there are thousands of books, programs, websites, apps, and seminars on this subject. That information can be helpful, and I encourage you to review it along with this article. But the one thing that I found lacking was the legal perspective, and the model I think works best in a legal case is being positive.

I know, I know, how can a lawyer dealing with child custody cases think of anything positive? Actually, about 15 years ago I noticed most custody cases involved telling a judge why a parent did something wrong. Sometimes the evidence did support that position, and while anything a parent does that negatively impacts a child should be addressed in a custody case, it does little to help a judge understand what the other parent is doing that is positive. That is really the thing to remember: a judge needs to know good things about a parent if the judge is going to make a decision that is in a child’s best interests. So I started focusing my clients and cases on being positive.

I find that the positive quality judges tend to value most is how well a parent supports the relationship between the child and the other parent. The reason I think that factor weighs more than others is because it is difficult to attain. If a parent can put aside their personal feelings about the other parent so the other parent has a good relationship with the child, then clearly the first parent is thinking about the child’s well-being and not their own agenda. When a judge is trying to determine if one parent is working towards making sure the child has a good relationship with the other parent, usually the judge is paying close attention to how the parents communicate. To be fair, positive communication can be difficult with people that you like. If we change that to communication with someone you don’t like, then positive communication is sometimes non-existent. But parents must communicate, and judges believe that fact. That said, most judges handling family law cases understand the reality of the situation. Most judges expect communication will be bad. So, what better time to show a judge that you can communicate positively?

I know, I know, it is easy for me to lecture about positive communication. I don’t have to deal with the #@!%! (other parent). True. You can ignore this article and keep doing what you have been doing for months or years. But ask yourself this: has it been working? If not, why not try something different? If it doesn’t work, you can always go back to yelling and name calling.

The idea is what I call the Five Tenets, and they should be the first things you think of before you communicate with the other parent. They should govern how you communicate. So before you respond to that text message, that email, or say something during a parenting time exchange, consider:

In the coming articles I will try to expand on these tenets, and why I think they are important. I will give some relatable examples that hopefully you can use in your communications with the other party. Heck, you might even find something you can use in dealing with a friend, co-worker or stranger. The point is this: all of us can communicate better. We are all unique and have our own viewpoints, and trying to convey some of those ideas to another person with their own unique viewpoints can be difficult. The above tenets will not solve problems with communication, but they might make it better. They might help to get your point across, and even help reach an agreement. They might relieve some stress, and really, wouldn’t that be nice? If the past year has taught me nothing else, it is that anything that can take away some stress is worth considering. Thanks for reading.


Tony A. Potter is a Member of Ward Potter LLC, where he uses his experiences in general civil, trial, and appellate practice to represent clients. Tony received his Juris Doctorate from Washburn School of Law in 1994 and has been continually licensed to practice law in Kansas since 1995. Tony is a member of the Kansas Bar Association, the Wichita Bar Association, the Northwest Kansas Bar Association, and Chair of the Wichita Bar Association Family Law Committee. His commitment to his clients was also recognized in 2018 when he was acknowledged as a “AV” attorney, peer rated for high professional achievement by Martindale-Hubbell, and he enjoys a 10.0 rating from the Avvo attorney website. Contact Tony

Ward Potter LLC is a family law firm located in Wichita, Kansas. Ward Potter handles divorce, child custody, parenting time, prenuptial and postnuptial agreements, visitation by grandparents, and paternity cases. The firm also provides litigation alternatives such as collaborative family law, mediation and arbitration. The mission of Ward Potter LLC is to guide clients through changes in their families with empathy, excellence and expertise. We strive to calm chaos and focus on the resolution, not the battle.

If It's Broken, How Do We Fix It?


Okay, so maybe broken is too strong. But, when a parenting plan is no longer in a child’s best interest, something must be done. When it comes to children, nothing is ever final. Parents change, children change, situations change, and modifications happen. At the same time, children usually do best with stability. But what if that stability is not what is set out in the current order? What do we do, and where do we start? Well, it depends (that all-time favorite lawyerly answer).

First, the Court always retains jurisdiction to modify parenting plans when it is in the child’s best interests to do so. In a nutshell, if life has happened, as life wants to do, and changes have occurred, the Court can change the plan. That change can happen by agreement of the parents, or by an order of the Court after a trial, but the final say is the Court’s.

Second, Court’s do not act until a parent asks for action. Meaning, that if a modification is to happen then a formal motion must be filed. That motion and proposal must be presented to the other parent, they must be given an opportunity to object, and to forward their own proposal.

Third, the procedure for filing the motion depends how the current parenting plan came into being. If the parenting plan was arrived at by an agreement of the parties, and the Court approved the plan based upon that agreement and without hearing evidence, then the request for modification should be sufficient to allow the Court to consider the motion. However, if the current parenting plan was established after an evidentiary hearing, then any changes to that plan can only occur if there has been a material change in circumstance such that the current plan is no longer in the child’s best interests. That concept is call res judicata, which is fancy lawyer-speak for only litigating issues once. If a Court heard evidence concerning parenting time, then that evidence is off limits for future motions.

Knowing all that, and understanding there is no one way to address a modification, we have found the best way to be:

  1. Make sure you identify the problems with the current parenting plan and develop a clear proposal to resolve the problems.
  2. Before filing the motion (if there is not an emergency) contact your lawyer and discuss the issues with her/him.
  3. If possible, discuss the issues with the other parent and see if you can come to an agreement.
  4. If you cannot come to an agreement, discuss with your lawyer how best to proceed. Usually, we contact the other parent, or their lawyer, and see if an agreement can be reached prior to filing a motion. While that may seem like an extra step, and possibly giving the other parent more time to prepare and respond, we find that being able to tell a Judge you tried to resolve the issue yourself before simply filing the motion is best. Judges like it when parents make the difficult decisions themselves, and it shows you are willing to try and co-parent, which is always good for the child.

Assuming you have tried all those steps, and you cannot come to an agreement, then filing the motion to modify will have to be done if the situation is to change. That said, filing the motion should not be something done lightly, and the old axiom of being careful of what you wish for because you may get it, rings true. If you ask a Judge for a change, she/he may make a change, but it might not be what you had in mind. That is not to discourage a parent from doing what they feel is in the child’s best interests, but rather to be certain that such motions are not done on a whim or out of anger. Judges favor the status quo when it comes to children, and Judges have considerable discretion regarding children. The last thing a parent wants after asking for a modification is a decision that essentially makes no change in parenting time or (gulp) lessens the parenting time prior to the motion being filed.

So, if you find yourself in a position where you need to modify the current parenting plan for your child’s best interests, you might keep the following points in mind:

Above all, remember there really is no “fix”. You may end up changing the situation for the better. but it is important to remember the change is for the situation now. It is rare to find a case where no other changes occur. Again, life happens. As life happens, the Court always can make another change if it is best for the child. So, if you find yourself in the unenviable position of having to file a motion to modify, remain calm, keep the love you have for your child in the front of your mind, and take deep breaths. This too shall pass.


Tony A. Potter is a Member of Ward Potter LLC, where he uses his experiences in general civil, trial, and appellate practice to represent clients. Tony received his Juris Doctorate from Washburn School of Law in 1994 and has been continually licensed to practice law in Kansas since 1995. Tony is a member of the Kansas Bar Association, the Wichita Bar Association, the Northwest Kansas Bar Association, and Chair of the Wichita Bar Association Family Law Committee. His commitment to his clients was also recognized in 2018 when he was acknowledged as a “AV” attorney, peer rated for high professional achievement by Martindale-Hubbell, and he enjoys a 10.0 rating from the Avvo attorney website. Contact Tony

Ward Potter LLC is a family law firm located in Wichita, Kansas. Ward Potter handles divorce, child custody, parenting time, prenuptial and postnuptial agreements, visitation by grandparents, and paternity cases. The firm also provides litigation alternatives such as collaborative family law, mediation and arbitration. The mission of Ward Potter LLC is to guide clients through changes in their families with empathy, excellence and expertise. We strive to calm chaos and focus on the resolution, not the battle.

Alternatives to Trial


Most cases do not go to trial. Chances are your case will settle, either through discussions between you and the other party, or more likely your attorneys, or through other formal means. So, let’s assume you do not want to go to trial, and incur the time, expense, and stress a trial will ultimately cost. If so, then alternative dispute resolution (ADR) is likely the best option.

What options are available, and which option would be the best fit for your case? It depends upon the issues in your case, and the status of your case. Are we arguing over children, finances, or both? Is this the original divorce/paternity action, or a motion filed months or years after orders have been issued? Once you identify those issues we can better determine how to proceed. But the reality of the situation is that participating in ADR increases the likelihood of settlement, and in my experience even if the case does not settle in ADR the process is not a waste of time.

It is important to understand the different forms of ADR, and usually they fall into the following categories:

  1. Mediation: The goal is to assist parties in defining the issues involved in the case, communicate with the parties on those issues and possible resolutions, and help the parties to reach an agreement. Other than cost, there is no downside to mediation. Please take that with a grain of salt in that I have participated in hundreds of mediation cases, both as a mediator and as an attorney representing the party in mediation. I believe in the process because it requires the parties to meet, to communicate their positions, and allows the mediator to provide guidance to the parties in reaching a settlement. Often it is the mediator making suggestions the parties had not considered, resulting in settlement. Granted, cost can be an issue, but when compared with the time and expense of a trial, mediation is the better alternative. Additionally, mediation is confidential, and so if the parties do not reach an agreement, none of the information learned in mediation (with some rare exceptions) can be used later at trial.
  2. Domestic Conciliation: This is the next step above mediation, with the goal being to work with parties that have a history of being unable to communicate and reach agreements. The first tier is trying to improve communication skills and develop solutions to lessen conflict. This is not a confidential process, and while the first part of domestic conciliation is to help the parties reach an agreement as in mediation, if they do not reach an agreement then the domestic conciliator prepares a report to the Court prior to the parties proceeding to trial. The Court is not required to give the report any weight in making its decision, but that is something that can occur, especially if the domestic conciliator does a good job of identifying the issues and possible outcomes.
  3. Parenting Coordination: For parties that have a history of disagreement, the next stage is parenting coordination, with the goal being to assist parties in reaching an agreement to resolve disputes and educating the parties regarding co-parenting and communication skills. But, if the parties are unable to reach an agreement, then the parenting coordinator is able to investigate the matter by speaking to third parties, and after completing an investigation, make recommendations to the Court regarding a resolution of the issues in question. Again, this is not a confidential process, and even though assisting the parties in reaching an agreement is the first step, if an agreement cannot be reached then the parenting coordinator issues a report similar to the domestic conciliator. The difference is the parenting coordinator makes recommendations to the Court as to how the issues in the case should be decided. Again, the Court is not required to follow the recommendation, but if the parenting coordinator provides convincing information to support the recommendation, then the Court can rely upon the recommendation at least in part in its ruling.
  4. Case Management: The last stop for high conflict cases with the goal being to assist parties by providing a procedure to facilitate negotiation and resolving issues concerning their children, co-parenting, and communication. If everything else has failed, and parties simply cannot cooperate in parenting their children, a case manager can be appointed to resolve disputes. Unlike the other forms of ADR, a case manager has considerable authority in resolving parenting disputes, even going as far as making recommendations to the Court regarding a change in custody, residency, or parenting time for the children. The Court still has the final say on such issues, but if the parties are to the point of participating in case management, and the case manager provides solid reasons for the suggested changes, Courts tend to follow those recommendations at least in part.
  5. Arbitration: Arbitration is the process where an arbitrator is appointed to resolve the issues in the case. The arbitrator takes the place of a Judge, and arbitration is similar to a court proceeding in that evidence is presented to the arbitrator and binding decisions are issued. Generally arbitration is used in cases dealing with financial issues, and much like mediation, cost is the main barrier. Additionally, it is not something family lawyers work with on a regular basis. But, if your case deals with complicated financial or legal issues, then arbitration may be a better (and quicker) option than waiting on a trial date. Lastly, arbitration can be included as the method for settling future disputes once a divorce is finalized, thereby saving the parties time and money if post-divorce issues need to be addressed.

The end result you should take from the above is this: Judges do a good job of reviewing cases and making decisions, but most will say the parties themselves are best suited to come to a decision. A Judge’s job is not to side with one party or the other, but to review the evidence and issue rulings. It is important to remember a Judge may not see the evidence the same way you do, and the resulting ruling could be different than expected. Also, negotiated settlements are generally best because while not perfect, they are the product of the parties coming to an agreement. That agreement can be built upon if there are future issues like parenting time and child support, and let’s face it: there will be those issues and we may as well start building the foundation now.


Tony A. Potter is a Member of Ward Potter LLC, where he uses his experiences in general civil, trial, and appellate practice to represent clients. Tony received his Juris Doctorate from Washburn School of Law in 1994 and has been continually licensed to practice law in Kansas since 1995. Tony is a member of the Kansas Bar Association, the Wichita Bar Association, the Northwest Kansas Bar Association, and Chair of the Wichita Bar Association Family Law Committee. His commitment to his clients was also recognized in 2018 when he was acknowledged as a “AV” attorney, peer rated for high professional achievement by Martindale-Hubbell, and he enjoys a 10.0 rating from the Avvo attorney website. Contact Tony

Ward Potter LLC is a family law firm located in Wichita, Kansas. Ward Potter handles divorce, child custody, parenting time, prenuptial and postnuptial agreements, visitation by grandparents, and paternity cases. The firm also provides litigation alternatives such as collaborative family law, mediation and arbitration. The mission of Ward Potter LLC is to guide clients through changes in their families with empathy, excellence and expertise. We strive to calm chaos and focus on the resolution, not the battle.

Lights, Camera, Trial!


Sometimes lawyers tell clients to “forget what you may have seen in the movies; your trial will be nothing like that”. Maybe, but there will be a courtroom, a Judge, an opposing attorney, witnesses, exhibits, etc., just like the movies. True, a Joe Pesci-esque character will not likely come into court with a leather coat and a Brooklyn accent, but that is not to say trial lawyers are like “normal” people. We aren’t.

A trial is a combination of procedure and performance, both of which are equally important. However, if the procedure was followed, and your case is prepared properly, the performance can make a difference. A trial is not a show, but trial lawyers know in the end we must convince a Judge our argument is correct. Evidence and procedure are helpful, but presentation matters.

Boiled down, a trial is opening statements, presentation of testimony and exhibits (evidence), objections, and closing statements. There could be other issues like motions to do this or that, but usually trials follow a pattern. So, what do these terms mean?

Opening Statement: An opening statement is not an argument. The opening is meant to give the Judge an idea of what the issues are, what the evidence will be, and what you are asking the Judge to do. Each attorney has their own style for opening statements. Mine is simple:

Usually a trial happens after months of preparation. The parties know the issues, the Judge knows the issues, and they just want to GET ON WITH IT. However, it is a mistake to waive an opening argument, even if it seems like a “simple” case. A trial is not a time to assume anything. Even if the same Judge heard all the motions and had the parties in the courtroom dozens of times before trial, assuming the Judge knows the case is an error. Expect your attorney to take a few minutes to frame the case and let everyone know what to expect.

Direct Examination: Direct examination is the first time the witness is questioned and tells what they know about the case. During direct examination the witness should give the Judge background information that supports their proposal and tells the Judge the story of the case. The Judge does not want to hear from the lawyer, the Judge wants to hear from the witness. If you are called as a witness (and you will) be prepared to give more than just “yes” or “no” answers. The questions should be open-ended (What, Why, Who, etc.), and answers should be given to help the Judge understand why the issues are important.

Cross Examination: Cross examination is what you usually see in movies, with lawyers shouting at witnesses and giving lectures. That is not how it is supposed to happen, and usually it does not. That said, we lawyers love to hear ourselves talk, and we’ve seen the same movies you’ve seen. Cross examination is the chance for the lawyer to get the witness to say things they do not want to say by using leading questions. Again, each lawyer has their own style, but I find that haranguing a witness is not effective, especially if the witness cries. While that might sound satisfying, it can make the lawyer look like a bully and create sympathy for the witness. The better technique is to methodically go through the testimony and evidence, get the witness to admit they were wrong (or better yet lying – that is the best), and show the Judge they are not credible. Usually it is not that clear, but cross examination is the best way to keep witnesses honest about the facts.

Re-Direct/Re-Cross: After the direct examination and cross examination lawyers have a chance to ask additional questions if needed. Re-direct or re-cross questions are not required, but they are common, especially if the cross examination was damaging to the case and the witness needs rehabilitated.

Objections: Objections happen when a lawyer thinks a question or exhibit should not be used as evidence. If you are testifying and a lawyer objects, stop talking. The Judge will rule on the objection and then tell the witness how to proceed.

Admission of Exhibits: Exhibits are usually copies of records, photographs, emails/texts, reports, and sometimes recordings. But just bringing them to Court is not enough. Exhibits must be relevant to the case, authentic, and testified to by a witness. Sometimes exhibits are stipulated into evidence beforehand to save time at trial, but contested exhibits will require foundation, or the background letting the Judge know the exhibit should be admitted and considered as evidence. Foundation comes from witness testimony, and it can be tricky if the witness (or the lawyer) is not prepared. Beware: exhibits for a trial can be hundreds, if not thousands, of pages. You should review them all carefully before trial. The likelihood you will be asked about an exhibit is very high. If you have not reviewed all the exhibits before the time of trial it could be damaging to your case.

Closing Statement: This actually is argument. This is the time the lawyer tells the Judge what the evidence shows, how the evidence supports your case, and why you should prevail. Closings are longer because the lawyer can now argue the client’s position. Again, differences in styles are abundant, but I find that a calm and collected argument, referring to all the evidence, positive and negative, is the best option. An older lawyer once told me something I will never forget: the only reason for a lawyer to be dramatic in court is if they do not have a good case.

A trial is not a fight, or a time for hysterics. Emotions will be high, and lawyers cannot help but be a little dramatic. But too much drama detracts from the message. Rather, a trial should be a well-organized presentation of the evidence demonstrating why your position on the issues is correct. Not a robotic recitation, but not so much drama the message is lost.

After all, this is not a movie.


Tony A. Potter is a Member of Ward Potter LLC, where he uses his experiences in general civil, trial, and appellate practice to represent clients. Tony received his Juris Doctorate from Washburn School of Law in 1994 and has been continually licensed to practice law in Kansas since 1995. Tony is a member of the Kansas Bar Association, the Wichita Bar Association, the Northwest Kansas Bar Association, and Chair of the Wichita Bar Association Family Law Committee. His commitment to his clients was also recognized in 2018 when he was acknowledged as a “AV” attorney, peer rated for high professional achievement by Martindale-Hubbell, and he enjoys a 10.0 rating from the Avvo attorney website. Contact Tony

Ward Potter LLC is a family law firm located in Wichita, Kansas. Ward Potter handles divorce, child custody, parenting time, prenuptial and postnuptial agreements, visitation by grandparents, and paternity cases. The firm also provides litigation alternatives such as collaborative family law, mediation and arbitration. The mission of Ward Potter LLC is to guide clients through changes in their families with empathy, excellence and expertise. We strive to calm chaos and focus on the resolution, not the battle.

How a Divorce Works-Part 2


Now that you understand the language, we need to talk about procedure. There seems to be two schools of thought on procedure: 1) the rule of law is sacrosanct and must be followed strictly upon pain of death; or 2) as long as everyone comes to the courthouse on the same day and at roughly the same time, we might be able to proceed. Guess which camp I fall into.

Truthfully it is somewhere in the middle, but for the most part Courts depend upon procedure to operate. There are some gray areas, but timelines and schedules do matter, and failing to meet them can jeopardize what you are trying to accomplish. To avoid pitfalls, it is important when speaking to your lawyer to understand what the timelines are, not just for your case but also how the case fits into your everyday life. While your hearing may only last an hour, the preparation for that hearing, getting to and from the Courthouse, attending the hearing, and communicating with your lawyer will take much more time. That is time away from the other things in your life that you were doing before being involved with the Court. Trials can go for days, and the preparation time is increased accordingly.

Before COVID-19 and all the fun that follows when Court systems close, we established a goal in our office to try and resolve new cases within six months. That assumed the case was not going to settle, and we would need to proceed to trial. That is an ambitious goal, and sometimes cases can take longer to prepare. While the actual timeline for your case may vary, you can expect the following at the outset:

  1. Petition/Answer: Once the petition is filed the other party has 21 or 30 days (depending on whether they live in the same State) to file an answer. The Petition cannot be granted for at least 60 days, but that is the minimal waiting period, and you should not expect your case will be final on the 61st day, even if you believe everything to be agreed upon. Trust us, it’s not.
  2. Discovery: Assuming you and the other party are not in agreement, lawyers want to conduct discovery to identify all issues, witnesses and exhibits before proceeding to a hearing or trial. No one like surprises, and discovery can be extensive depending on the issues. Ideally, discovery should be completed within 90 days, but things happen like waiting on appraisals, accountings, reports from counselors, or just life in general.
  3. Settlement/Mediation: Once discovery is completed, issues/evidence are identified, and strengths and weaknesses assessed, settlement negotiations or formal mediation can be productive. We believe discovery should be completed first so we can avoid the issue of the unknown. Guessing what a house is worth, how much is in a retirement fund, or what a counselor will say regarding children, is difficult. It is best to have that information before beginning negotiations.
  4. Hearings: Courts differ as to scheduling, not just from Judge to Judge, but also depending upon current caseloads. If an issue needs to be addressed before trial (reviewing temporary orders, a sale of property, etc.) a motion hearing can be held within a few weeks. However, hearings can be continued while the issues are discussed and offers of settlement reviewed.
  5. Trial: Sometimes there is a reluctance to schedule cases for trial. Judges and counsel want to assume cases will settle, and hopefully they will. But settlement cannot be guaranteed, and as discussed previously, it is best to set a trial date and not need it, then hope for settlement only to end up scheduling a trial months after the date you could have had. Our goal is that if a case is to be tried then trial should occur within six months, but that timeframe is ambitious. Being proactive and asking for a trial date early can help in getting a date set, even if it is nine months away.

As stated before, your lawyer needs your help. The more help you provide, the better your case will be prepared. Additionally, being proactive in providing information to your lawyer makes it more likely the above timelines can be met. In our practice we find clients to be the most helpful by:

The above timelines are long, and the stress of the situation will make them seem longer. Best advice: take a deep breath, know that this too will come to an end, and be proactive in moving your case forward. Nothing is done best in haste, and a well-prepared case, even though it will take time, is the one you want to present to the Judge. Rushing to get to the courthouse without fully developing the evidence is a mistake. Judges tend to not want to make important decisions without knowing all the facts. Make sure you and your lawyer take the time to develop your case and give the Court all the facts. To that end, it might be best to consider setting aside some time in your schedule specifically to address your case. That might be daily at first, then weekly, but making sure you have time to accomplish a task is the first step in competing the task.


Tony A. Potter is a Member of Ward Potter LLC, where he uses his experiences in general civil, trial, and appellate practice to represent clients. Tony received his Juris Doctorate from Washburn School of Law in 1994 and has been continually licensed to practice law in Kansas since 1995. Tony is a member of the Kansas Bar Association, the Wichita Bar Association, the Northwest Kansas Bar Association, and Chair of the Wichita Bar Association Family Law Committee. His commitment to his clients was also recognized in 2018 when he was acknowledged as a “AV” attorney, peer rated for high professional achievement by Martindale-Hubbell, and he enjoys a 10.0 rating from the Avvo attorney website. Contact Tony

Ward Potter LLC is a family law firm located in Wichita, Kansas. Ward Potter handles divorce, child custody, parenting time, prenuptial and postnuptial agreements, visitation by grandparents, and paternity cases. The firm also provides litigation alternatives such as collaborative family law, mediation and arbitration. The mission of Ward Potter LLC is to guide clients through changes in their families with empathy, excellence and expertise. We strive to calm chaos and focus on the resolution, not the battle.

How a Divorce Works-Part 1


After deciding on a lawyer, and having the attorney decide on you, the next most important step is to understand the process. Your understanding of the process, and avoiding the “Oh, I did not know that was an option” conversation, is crucial. If you do not understand the process, then you might not be able to assist your lawyer with your case. And make no mistake: it is your case, and your lawyer needs your help. If you do not feel those two statements are true, please re-read the previous post on selecting a lawyer.

There are two parts to understanding the process: 1) understanding language and terminology; and 2) understanding procedure. Today we are going to focus on language, because if you do not speak the language, everything else falls apart. And really, I went to school for a long time to learn these terms, so it gives me a chance to show off.

Some basic terms in dealing with a divorce from beginning to end are:

Petition for Divorce:  A petition is a document filed with a Court asking for some form of relief. A divorce petition would include asking the Court to dissolve the marriage, determine issues regarding custody, residency, parenting time and support of children (if any), determine if spousal maintenance (alimony) is to be paid, and if so by which party, in what amount and for how long, dividing assets and allocating debts, and payment of attorney’s fees and costs.

Parenting Plan:  A parenting plan establishes child custody, residency, and parenting time. A parenting plan is required by statute, but what is included in the parenting plan can vary. The parenting plan should establish not just the time each parent will spend with the children, but each parent’s co-parenting duties and responsibilities to the children.

Domestic Relations Affidavit:  Before a Court can enter orders regarding child support, spousal maintenance, and possession of assets or payment of debts, the Judge must have financial information for the parties. A domestic relations affidavit gives the Court that information. The key word is “affidavit”. This is a statement sworn under oath to be true. A domestic relations affidavit can, and should, be amended as more information becomes available. But it is important that when the affidavit is signed the information therein is accurate.

Child Support Worksheet:  The Kansas Child Support Guidelines determine how much child support is paid, and by which parent. In making that determination we look at the parties’ incomes before taxes, the number and ages of the children, costs for insurance, parenting time, and other factors specific to your case to determine what child support should be paid. The worksheet is the rendition of that calculation.

Temporary Orders:  Temporary orders should be issued in each case given that a divorce cannot be granted (in Kansas, and absent an emergency) for at least 60 days after the petition is filed with the Court. Given that the 60 day period is the minimum amount of time, and most likely it will be considerably longer if the parties cannot agree to resolve all issues, temporary orders are needed to address issues regarding children, payment of support, and possession/use of property can be addressed while the case is pending. Most temporary orders follow a format, and while each case is different and the temporary orders may need to be tailored to fit a particular situation, generally Courts require some uniformity so that the “usual” issues are addressed. To that end, it is important to remember that a temporary order is just that: A Court order, and violations of Court orders are frowned upon by judges.

Summons/Entry of Appearance:  The Court must have written verification that the respondent (non-filing party) has notice the divorce has been filed. The summons and/or entry of appearance is that verification and puts the other party on notice the case is pending and requires them to act.

Scheduling Order:  We generally ask the Court to issue a scheduling order, and usually we ask early in the case. A scheduling order establishes dates to complete discovery, for pretrial and trial. This does not mean we are set on taking a case to trial, but rather we want to establish a date now, even if it is months away, so we can work on settlement, but at the same time have a date certain the case will be completed.

Discovery:  Discovery is the process of determining what the evidence will be in a case. Discovery can be formal or informal, but generally requires each side to disclose witnesses and exhibits they will present at trial. Discovery ensures each party knows the facts of the case, each party can negotiate in good faith, and if they proceed to trial, there are no surprises.

Alternative Dispute Resolution (ADR):  Settling a case is usually best, and ADR simply means settlement. The most common form of ADR is mediation, where the parties meet with a trained mediator to discuss their case and possible settlement options. There are other forms of ADR, some of which can involve reports and recommendations to the Court, and it is important to discuss all forms with your lawyer.

Settlement Agreement:  If you reach an agreement to settle the issues in your case, that agreement must be reduced to writing and signed by the parties. The agreement is then presented to the Court and becomes enforceable as a Court order. A settlement agreement should include issues such as adopting an agreed parenting plan, provisions for child support and/or spousal maintenance, how property will be divided, how debts will be paid, and the how the provisions of the agreement will be accomplished.

Decree of Divorce:  The decree is the document granting the divorce, and approving the settlement agreement, parenting plan, and child support worksheet. Generally, the decree adds to the parties’ agreements by making them enforceable as Court orders.

Pretrial Order:  If the case is to proceed to trial a pretrial order is issued. The order establishes the issues of the case, the witnesses and exhibits for trial, and establishes dates. The pretrial order should be viewed as the document that controls the trial, and it is important that all witnesses and exhibits are listed in the order. Usually additions to the pretrial order are not made absent extraordinary circumstances.

Trial:  Simply put, a trial is the procedure where both sides offer evidence (witnesses and exhibits) and the Court issues a ruling. Trials can vary with opening statements, closing statements, and the filing of briefs with the Court, but most trials follow the pattern of presenting a Judge with evidence so that a ruling on the issues can be made. At the conclusion of the trial the Judge will issue a decree of divorce and journal entry setting forth the ruling.

There are more terms that could be specific to your case, and your lawyer can help you with those terms. The important thing to remember is that you continue to ask, and if you do not understand, ask again. If you do not understand the terminology you will not be able to make decisions that are best for your case.


Tony A. Potter is a Member of Ward Potter LLC, where he uses his experiences in general civil, trial, and appellate practice to represent clients. Tony received his Juris Doctorate from Washburn School of Law in 1994 and has been continually licensed to practice law in Kansas since 1995. Tony is a member of the Kansas Bar Association, the Wichita Bar Association, the Northwest Kansas Bar Association, and Chair of the Wichita Bar Association Family Law Committee. His commitment to his clients was also recognized in 2018 when he was acknowledged as a “AV” attorney, peer rated for high professional achievement by Martindale-Hubbell, and he enjoys a 10.0 rating from the Avvo attorney website. Contact Tony

Ward Potter LLC is a family law firm located in Wichita, Kansas. Ward Potter handles divorce, child custody, parenting time, prenuptial and postnuptial agreements, visitation by grandparents, and paternity cases. The firm also provides litigation alternatives such as collaborative family law, mediation and arbitration. The mission of Ward Potter LLC is to guide clients through changes in their families with empathy, excellence and expertise. We strive to calm chaos and focus on the resolution, not the battle.