Wednesday, July 1, 2015

Don't Try These at Home: Good-Sounding Ideas that Lead to Conflict


Although I am all for compromise, creativity and maximum contact with the kids for both parents, I have to recommend against using the following, based on my experience in actual cases.

1.  Frequent phone calls to the children.  Many parents want to be able to call the children, or worse, want the children to call the parent, every evening or at other times and frequencies.  Almost always, that leads to arguments.  The parent who has the children doesn't want to interrupt their activities.  Sometimes the kids are out somewhere, but the other parent doesn't believe it, or sometimes the parent in possession intentionally makes it impossible for the other parent to talk with the kids. Often the kids don't want to stop playing, watching videos, texting or talking with their friends, even doing homework, in order to talk with the other parent.  In some situations, the parent with the kids sets up something that conflicts with the scheduled call time so the kids are available or the kids don't want to stop what they're doing.

For some parents insisting on the calls, it's a control scheme.  They want to lock down the other parent and prevent them from being able to plan activities at certain times and they like to threaten court action against the parent in possession

There are so many different ways that problems come up, it's generally  better to not require such calls.  Another alternative, depending on the age of the children, is for the non-possessory parent to provide cell phones to the children.  Then, the kids can call or text the parent or the parent can call or text the children anytime.

2.  Right of first refusal.  While it sounds like  nice idea for the non-possessory parent to have the right to take care of the children if the other parent won't be around to care for them for a while, the devil is in the details.  How much time is needed to trigger the provision:  2 or 3 hours, 6 hours, overnight?  What are the notice provisions?  What if the kids just want to spend the night with their friends or other relatives?  Why shouldn't grandparents get some time with the kids?

While this sounds like a parent wanting to spend more time with their kids, it often is a control mechanism as well.  It's a way to isolate children from one side of their family if they don't get to spend the night with relatives.  There is frequent conflict over how the right of first refusal applies in a given situation.  A big part of that is threatened litigation and punishment.

Given the fighting and stress over this issue, you should think twice before incorporating it in a court order.

3.  Weeknights in the summer.  In the Texas standard possession order, the non-possessory parent usually gets the children every Thursday night during the school year.  It's limited to the school year because the schedule changes so much in the summer when each parent can have the children for 2 to 3 to 4 weeks at a time.  Adding weeknights in the summer ends up potentially shorting the time of the possessory parent.  I have seen a schedule where the schedule was manipulated and planned so carefully that the possessory parent ended up with only about 4 days total in June and July.  That's not right for the parent or the children.

Extra weeknights are not needed for the summer.  The standard possession schedule gives plenty of time for each parent and it doesn't encourage fighting or greed.

These are all three ideas that sometimes can be good for both parents and children.  However, I recommend against using them because most often they lead to conflict that could be avoided.


Monday, June 1, 2015

Creative Ways to Pay Your Attorney


One of the main reasons why people change attorneys in the middle of  divorces and other court cases is inability to pay for the attorney.  Attorneys prefer to not withdraw and often will be patient up to a point, but they can't work and not be paid.  It's best to deal with the issue early on.

What can you do if you think you can't afford to pay your attorney?  Here are some options to consider.

1.  First, do a realistic evaluation up front.  Sure, you want the best attorney available, but can you afford that attorney? Look at your income and resources, including the suggestions below.

2. Find an attorney you can afford.  Did you know that there are a lot of very good attorneys around who would be happy to represent you?  A higher hourly rate doesn't necessarily mean an attorney is the best one for you.  There are many good attorneys who charge a variety of hourly rates.  Don't stop with the most expensive attorney.  Try to start off with an affordable attorney you have good chemistry with.

3.  Some attorneys will work out a payment plan for you.  Some don't.  It's a good discussion to have up front, rather than waiting until you fall behind on payments.

4. You may be able to pay a flat fee for services.  Very few attorneys do that, but some will.  I have done it in contested cases with payment in stages, and that can work out. Keep in mind, "Flat fee"  doesn't  equate with "cheap".  The fees may sound high all at once, but there is certainty about the total amounts to be charged and you can plan how to pay it.  It's another good discussion.

5. Most attorneys will take credit cards for payments of attorney fees.  It's not exactly free money, but it can help you manage the payments.

6. You might be able to get money from your spouse by agreement or court order.  If there's money available, most courts will try to get attorneys paid so the parties can be represented.

7.  Maybe you can take funds from an asset.  There may be bank accounts, investments or other savings that could be tapped. If there's an injunction or restraining order, you may need permission to access some funds.

8. Maybe the attorney could be paid from the proceeds from the sale of  your house, if it's going to be sold.  That would take agreement by all parties and attorneys, but it's frequently done.

9.  You could take out a loan from a bank or a 401K account or use a line of credit. If there are court orders in effect already, make sure you get permission and don't violate the orders.

10. You may need to borrow from family or friends.  No one likes to do that, but it might be your only option.

As you can see, there are potentially many different ways to pay attorney's fees.  The best approach is to talk early and often with your attorney about the fees so payments can be managed.

Tuesday, May 26, 2015

Tuesday Tips: How an Attorney Helps in Mediation


Mediation is a great process for resolving disputes. I'm not neutral on the topic because I am also a mediator, and I have been promoting mediation for over 20 years.  It's a peaceful way to resolve cases and the parties usually come out with agreements they are satisfied with. 

One of the reasons why mediation can work is that the mediator is strictly neutral.  The mediator must avoid taking sides, but that also limits the amount of help a mediator can provide to a party in mediation.  One of the mediator's chief  roles is to keep the parties talking. The mediator is not there to suggest solutions.  Those come from the parties or their attorneys.

I have participated in mediations where there were attorneys for both parties, where neither party had an attorney and where only one party had an attorney.  Generally, the best results come where both parties have attorneys.  The most difficult cases are usually the ones where one party has an attorney and the other party does not.  In that situation, the represented side has advantages in knowledge and skill in negotiating (unless the attorney does a poor job).

How does an attorney help in mediation?

  • The attorney can understand the issues and the law.  Sometimes, unrepresented parties want to argue about non-issues or may want to do something that is impossible to do.  An attorney can help a client understand what issues need to be addressed and what possible solutions are.  If a client wants to do something that can't be done, the attorney can present some alternatives.
  • An attorney makes sure issues aren't overlooked.  A party may be unaware of some issues and they might not get discussed if there's no attorney on the case.
  • Unlike a mediator, the attorney is not neutral.  An attorney can tell the party that something won't work or is a bad idea.  An attorney can suggest better ways to do things.
  • An experienced attorney is generally an experienced negotiator.  (From  my perspective, an attorney-mediator is an even better mediator.)  Mediation is so ingrained in Family Law now, attorneys have to learn and practice negotiation skills all the time.  Having an experienced negotiator can lead to a smoother process and better results. Knowing when and how to bring up some issues can make a huge difference.
One of the smartest moves you can make is to hire an attorney before you go to mediation. If you are not yet represented and are facing mediation, do yourself a favor and find an experienced negotiator-attorney to help you. You will appreciate the help.

Tuesday, May 19, 2015

Tuesday Tips: Help Your Attorney Help You!


In every divorce, there are financial issues.  They may be about a home, investments, a business or businesses, retirement assets, bank accounts, employment benefits, debts or taxes, among other things.  Dividing assets and liabilities is at the heart of every divorce.  Some cases are more or less complicated than others, but finances are always involved.

In addition, when there are children, child support is often a consideration and that brings up the income of each party.  You will need pay stubs, tax returns and a monthly budget.

All of that means when you are getting divorced, plan on gathering and producing financial records for your attorney.  Those records are generally going to be shared with the other side, either voluntarily or in response to formal Discovery.  You will need bank and credit card statements, retirement account statements, mortgage statements, investment records and probably many other records.  Your attorney can tell what will be needed.

The sooner you provide financial information to your attorney, the sooner your attorney can understand the marital estate and start helping you meet your needs and interests.

Remember, there's no 50-50 rule in Texas for dividing assets.  You need to think ahead and decide what you want to end up with.  Your attorney can try to help you achieve you goals if the attorney knows your goals and needs and if you have provided the information the attorney needs.

Sometimes you may not have access to all or some of the financial information.  Your attorney can request that information from the other side, but you need to give your attorney some information to know what to look for and ask for.

Be an active partner in your own divorce.  Help your attorney by providing financial information as soon as possible!


Tuesday, May 12, 2015

Tuesday Tips: Don't Try to Do-It-Yourself Without Your Own Attorney!


In these days with a contagious "do-it-yourself" attitude about so many things, many people have taken that approach to getting divorced.  That may be a mistake, unless it is a very short marriage, with little or no assets, and no kids.

Part of the motivation is to save money.  That's understandable, but keep in mind that you don't have to hire a high-priced lawyer to get good representation.  For smaller estates and parent-child issues, and even for more complicated estates,  younger, less-expensive attorneys can be fully capable of providing quality representation for you.  Just because an attorney charges a higher fee, that doesn't guarantee quality and doesn't mean that attorney is a good match for you.

So you can hire a good attorney and not break the bank. Should you hire an attorney or just go all out to save the money and do it yourself?

If any of these conditions exist, you should probably have an attorney assist you in resolving your divorce:
  • You have children with the spouse.
  • You or your spouse have retirement assets.
  • You have investments.
  • You have a house, with positive equity or negative equity.
  • You have significant debts.
  • You have been married for at least several years.
There are many different ways to handle those issues and you may not even realize the significance of some matters.  There are lots of rules in Family Law. It may not be easy to translate your ideas into legally-acceptable court orders.  If orders aren't drawn properly, they may not be enforceable.  You may lose all rights to some things if you don't deal with them correctly.

Don't assume that common sense applies to the law.

At the very least, you  should have a consultation with an attorney (or several) to check out your options and what their consequences are.  It may save you money in the long run.



Tuesday, May 5, 2015

Tuesday Tips: Don't Contact the Attorney General Without having Your Own Attorney!


In Texas, and many other states, the state Attorney General is very involved in collecting child support.  This activity is a result of a number of federal statutes that have given the AG the power to take various actions to assure that child support is being paid and is paid in the proper amount.

Although the AG technically does not represent either parent in child support matters, they are hardly neutral.  In reality, the parent receiving child support has a strong ally in the AG.  Their interests tend to coincide.
 
In addition, the Attorney General has certain responsibilities, ordered by federal and state laws, that they follow up on in most cases.  They often follow predetermined steps when a case is opened up.

Over the years, I have had several clients come to me after their contacted the AG on their own or responded on their own when the AG contacted them.  They came because there were problems.

Here are some potential problems when the paying party goes to the Attorney General:

1.  You probably don't know what you are doing, while the AG knows the law, their regulations and their procedures.  You may agree to something without knowing the consequences. Or, because no one was looking out for your interests,  you may not do something that you could have done to help yourself and save yourself money.
2.  When you go to the AG for help, they will probably open a file, but  they won't necessarily help YOU.  You are not their client.  They are not neutral in a helpful sense to you.
3.  You can start a chain reaction of events that leads to the opposite result of what you were seeking.  For example, your child support could be increased, you could be found in contempt and you might end up paying your ex-spouse's attorney's fees and costs.

The safest course of action is to spend a little money up front, have an attorney review your situation before you communicate with the AG. Then use your attorney if you take action regarding the child support.  Don't depend on the Attorney General to help you.  It's not their job.


Wednesday, April 1, 2015

April 1st -- Summer Possession Notice Deadline -- No Fooling!


A Reminder and Word of Warning:

In Texas, the standard possession schedule has a provision that the parent who is given the right to have the children for up to 30 days in the summer must notify the other parent of the dates when he or she wants the children.  That notice needs to be sent by April 1 each year.

If the parent with the possession schedule does not send out the notice by April 1, the standard provision then says that the parent's time is automatically the month of July, July 1-31.

If you don't want your time in July, you better send out your notice by April 1 or you better be able to negotiate a trade of time with the other parent.  Hopefully, you and your ex have a decent relationship and can talk.  If not, you need to adjust your plans.

Also Note -- your possession schedule order may not be standard. 

Always look at your order to determine your rights and obligations, and deadlines.



Sunday, March 1, 2015

Why is it Taking so Long?


There's more to a divorce than the start and finish.

In many divorces, one party is much readier to finish the process than the spouse is.  Usually, that party has been thinking about and planning for the divorce quietly for a long time. The ready party often becomes very anxious to get through the process and start a new single life.

Unfortunately for that person, the spouse can really slow down the process by requesting counseling, doing extensive discovery, having multiple hearings and by refusing to agree on things.  The party in a hurry gets frustrated by how slow the process moves and that's understandable, but basically unavoidable.

Aside from the actions a spouse may take to intentionally slow down the process, there are a number of requirements or actions that typically put the brakes on any attempt to speed through a divorce. Here are some to keep in mind.

1.  Time must pass.  There is a 60-day waiting period in Texas and some sort of waiting period in most states. The petition for divorce must be on file with the court for at least two months before a divorce can be granted.  In addition, if you want to finish right after the 60 days is up, you need to have an agreement with your spouse.  That requires a spouse who is emotionally and financially ready to finalize the divorce, and that doesn't always happen right away.

2. Temporary arrangements are set up.  In most cases, temporary orders are set up by agreement or by going to court.  Experienced attorneys can pretty well figure out what you can get in a given court -- most judges have some standard rules and provisions.  One way or another, temporary orders usually are established for the benefit and protection of both parties.

3. Transitions are planned.  This may take place with the temporary orders, but there are a number of other transitional issues to cover.  The parties need to understand that their lives are changing and one or both will need financial help and time to set up separate households, possibly make career changes and deal with how to share their children.  One may have to go back to school.  Sometimes it's hard to find a job. Courts usually try to provide some help to the disadvantaged party on a temporary basis.

4. Information must be gathered.  This can be done formally through written discovery and depositions, or informally by requesting and receiving an documents that either party wants to see.  It's really helpful to prepare a spreadsheet with the assets and liabilities.  It's also pretty standard to get an Inventory and Appraisement from each party.  It's a formal, sworn statement listing the assets and liabilities in great detail.  An Inventory gets both parties to think carefully about what they have and may reduce the temptation to hide assets.

5.  Creating a strategy.  You need to come up with a strategy for a satisfactory conclusion.  Figure out what you want to end up with and you should try to imagine what your spouse will likely want.  Your strategy should allow both your and your spouse's needs to be met, if you want to settle. That sometimes takes a lot of creativity and some time.

6. Planning to settle.  Almost every divorce settles, so you need to figure out how and when that can happen. Sometimes, settlements come from informal negotiations over time.  That's usually when both parties are fairly rational and both are motivated to get the divorce over with. In more difficult cases, mediation is used and that is a very successful process.  If agreement can't be reached informally or at mediation, then the case is set for court.  Even then, many cases will settle at the courthouse, either just before trial or during trial.  Very few cases go all the way through trial. Of course, your case could be the rare one!

7.  Allow time for paperwork.  Unfortunately, just reaching an agreement is not enough.  After that necessary step, there's still a lot to be done.  A decree of divorce must be prepared and sometimes negotiated.  In some cases, we use an additional agreement incident to divorce to include provisions we don't want in the public record.When there's a retirement account to be divided, we prepare a qualified domestic relations order (QDRO).,  There are deeds, powers of attorney and various other documents to be prepared as well.  Many times it takes 3-4 weeks to get the paperwork drafted, negotiated and signed, and it can take longer if there are serious disagreements.

Every divorce is different.  You may have a friend or a friend of a friend who got a quick divorce in a couple of months, but don't assume that yours will go as smoothly.  That is a very rare exception. Talk to your lawyer at the outset about your hopes and expectations.  Your lawyer can help you get a fairly realistic idea of what your case might entail, but initial thoughts are subject to revision several times as you go through a divorce.  As things change, don't be surprised if you timeline changes. 

Please try to be patient.


Sunday, February 1, 2015

An Expensive Way to Save Money


When the Texas Attorney General's Office gets involved in a family law matter, you better be prepared to defend yourself.  The AG will not represent mother or father officially, but can tilt the scales in favor or one side or the other.  When the AG is involved, you need your own attorney.

The Attorney General is required to act in some circumstances to collect child support, establish parent-child relationships (paternity), make sure medical support is provided for children, re-coup state money that may have been paid to a parent or child and modify child support orders, among other things.  The AG acts under federal and state law.

Important rights and obligations are affected by actions in court initiated by the AG.  Parental rights are assigned to parents, including custody, the powers to make educational, medical and residence decisions, and possession  (visitation) schedules.  Retroactive and future child support are ordered.  Judgments are granted for past-due child support.

Parents and alleged parents sometimes receive various notices from the AG about some of the issues mentioned above.   You may be required to appear in court or you may be notified to come to the AG's office to negotiate an agreement for paternity and support, or just support.

If you receive such a notice from the AG, don't ignore it.  You need to immediately hire an attorney and prepare for court or negotiations. 

You are mistaken if you think the AG will spend a lot of time with you, listen impartially to your side of the story or take time to develop a special possession schedule for your special circumstances.  The Attorney General has thousands of cases and is understaffed.  They will efficiently deal with your case like they deal with thousands of others, unless you have an attorney present to help you.

If you think you can't afford to pay an attorney, shop around for a less expensive one.

Without an attorney, you can end up with the wrong amount of child support, a terrible visitation schedule and without the rights and powers of a parent that are important to you.  You may have lost custody without realizing what you were agreeing to.

Without an attorney, there is a lot of pressure to settle and sign.  That same pressure is there when you have an attorney, but then you have someone who can slow things down and do it right.

Don't think you get a "do-over".  If you make a deal with the AG and it's written up as a court order, it will be quickly signed by a Judge and it will be very hard and EXPENSIVE to undo, if you are even able to do so.

Bottom line:  You need to spend a little money to protect yourself and your children.  It will save you money in the long run!


Thursday, January 1, 2015

New Year. New Start.


With a new year upon us, you may be deciding to take charge of your life.  You may be in a marriage that you know is going nowhere and which is slowly draining you of your energy and happiness.

Even with that realization, change can be tough.  People get comfortable in the known situation even if they aren't really happy.

Should you stay in a bad relationship that you know and understand, or should you file for divorce and enter a new and unknown stage of your life?

That's a question that you have to answer.  As long as you stay in a bad relationship, you will see the question again and again.  Maybe you can go to counseling or make other changes, or maybe it's time to leave.  Again, your decision.

January is the frequent filing month for divorce.  Many people decide in advance and wait until after the holidays.  Others make it through the holidays and then decide enough is enough.  If you are tempted to separate and file for divorce in January, here are some suggestions for you:
  • Plan the timing.  Decide when it is safest to separate and when you are prepared.
  • Plan where you are going to live.  You could stay in the same house, you could move out or you could try to get your spouse to move out.  Have a definite plan, including when, where and how you will make the transition.
  • Plan your finances.  Work out your post-separation cash flow plan, with both income and expenses.  Have as much money as possible set aside for your expenses and security.
  • Tell essential family members ahead of time.  You may need their help and you don't want them to be shocked and trying to talk you out of it when you separate.
  • Safeguard what's important to you.  Secure and remove personal things that are important to you, regardless of value.  This can include jewelry, photos, books, personal papers, family items and other things that have sentimental or other value.  These type items often are held hostage or "lost" during the course of a divorce. You can avoid that with planning and acting early.
  • Plan how to break the news.  If your spouse doesn't realize that you are thinking separation or divorce, decide whether it's safe or advisable to discuss the move in advance. Sometimes it's good and sometimes it works out badly.
  • Research for the right attorney.  Consider things like:
  1. Chemistry -- Interview the attorney and decide whether you feel a connection.  Plan to pay for the initial interview. 
  2. Communication -- Talk with the attorney about whether you want frequent communication and what method of communication you prefer.  
  3. Affordable -- Different attorneys charge different amounts, both in hourly rates and in retainers.  There are good attorneys who can handle your case at different costs.  Try to be realistic about what you can afford.
  • Gather financial documents for your attorney to review.  My blogs and website have information about what is helpful.  You should ask your attorney what he/she needs.
  • Finally, try a little empathy.  Spend a little time in your spouse's shoes.  How will he/she react? With anger, relief, agreement, revenge, blame or rationality?  Try to anticipate the reaction and that will help your attorney and you be more effective.
There's a lot to do  if you are wanting to get a fresh start.  Divorce is serious and you will do a lot better if you look and think before you leap!