Friday, May 1, 2020

Expect Delays at Court -- What Can You Do?


Courts Shut Down
For at least the next four months, and likely longer, the Family Law courts are going to be backed up everywhere. In Texas, our courts statewide have been shut down since about the middle of March. They may re-open June 1, 2020, but it could be later.

Backlog of Cases
When the courts finally re-open, there will be a rush to the courthouse. By then, there will have been about 2 1/2 months of no court. Most of the issues don't go away. At best, a bandaid is devised with the idea that the issue will be resolved later.

Greater Number of Cases
You should expect a big log jam of cases on June 1. We will have the 2 1/2 months worth of cases, plus new cases starting up. On top of that, we may have a larger volume of cases being filed as the Covid-19 quarantine may have been too much closeness and stress for some marriages to continue.

What Can You Do?
1. You can wait in line to be heard. That could take weeks or a month or two instead of the usual days. If your issue isn't too urgent, waiting won't hurt. If there is urgency, you could have a hard time.

2. You and your attorney can negotiate. In the old days, that's the way a lot of cases were resolved. It may be an attractive choice so you can get some decisions made, but you don't get your day in court to be heard by a judge (if that matters to you).

3. You can try mediation. Although mediation most often occurs closer to the final trial date, there's nothing wrong with using mediation to work out temporary orders, final orders and even other disputes. In Tarrant County, we have a strong group of mediators, including some former judges, who would be available to mediate.

A Final Thought:
Maybe you should consider the Collaborative process. It's not for just the easy or agreeable cases. It's an excellent approach for resolving all divorce issues, including temporary matters.
You can always switch to Collaborative, if you have a trained Collaborative lawyer.  Better yet, start the case in the Collaborative mode.

Wednesday, April 1, 2020

Would a Therapist Help?


Disclaimer (naturally, I'm a lawyer):  This is not intended to be counseling or therapy for your situation. It is information for you to consider if you are facing a divorce.

The end of a marriage (or other relationship) can be one of the toughest events anyone has to go through. Dreams end. Plans change. You lose friends and connections.Feelings of failure often surface.  Doubts start to dominate. 

If can all be pretty overwhelming.

Most people initially believe they can handle the situation. They talk with friends and family. They self medicate. Many bury themselves in their work.  Some just try to ignore the situation.

For many, there's a better alternative:  counseling.  You don't have to be crazy to benefit from counseling. There are all types of counselors around.  You just need to find one with whom you are comfortable.

If any of the following is happening to you, it would be a good idea to meet with a counselor. This is not a complete list of all possible reasons to see a counselor. These are common situations that warrant attention. You may have other reasons that warrant counseling, so please be open to that.

1.  You may have strong anger toward your ex because of the breakup. The anger may start to affect your life. Your relationships with other people may suffer and your ability to work could be impaired. If your anger controls your life and behavior, you should seek relief through counseling.

2.  It may be that you can't stop thinking about the breakup. It dominates your thoughts. You may not be able to focus on anything else. That interferes with your life, work and friendships. You need to find peace and balance.

3.  You may start to feel physically ill.  Stress can cause headaches or stomach issues. You may start feeling constantly tired. Before your health starts to seriously suffer, please talk to a therapist.

4.  You may lose interest in your close friends and favorite activities. Not being able to enjoy life is a signal that you need help. If you are at this point, it's probably not something you can just work through yourself.

5.  If your family or friends start talking to you about their concerns for you,  it may be time to seek help. Family and friends can be more objective than we are sometimes. They may notice if:

  • You seem depressed.
  • Your drinking has increased.
  • There's drug use or it has changed.
  • You seem disconnected from your family or circle of friends.
  • You show a lot of anger.
  • They observe other behavioral changes.

If any of the above circumstances may be occurring, please meet with a counselor to see if there's some help you can get. It doesn't mean you are crazy or weak or a failure. It means that you're smart and you care. Please take care of yourself!




Sunday, March 1, 2020

Why You Need a Lawyer for Mediation


Mediation is a great process for resolving disputes. I am a mediator and an advocate for it. However, I strongly believe mediation works better with attorneys involved.

My comments are applicable to mediations in Texas which are usually done as a day or half-day event, usually with attorneys for each party. In family law cases, it is usually done where the two sides sit in separate rooms, each with their own attorney. The mediator goes back and forth from room to room, asking questions and conveying information and proposals.

Here are some ways attorneys can be very beneficial to their clients in the process.

Preparation

There are a number of things your attorney can do to help you prepare for mediation.

  • Gather the documents you need.
  • Prepare charts or exhibits to help your case.
  • Review information from the other side.
  • Plan strategy.
  • Explain the issues for you.
  • Explain procedures in mediation and in your case.
  • Discuss the legal context with you.
  • Discuss and develop possible outcomes.
During Mediation

Mediation is a slow-moving process, with lots of time for thinking, discussion and just plain waiting. During the down times, when the mediator is not with you, your attorney can be doing things to help you.
  • Reassure you if you start thinking the mediator is on your spouse's side (a common feeling). That often comes up when the mediator spends a lot of time with the other side, but it's never the case because the mediator remains neutral. Sometimes it's just hard to get someone to make a decision, as you may know from experience.
  • Remind you that the mediator is just playing the devil's advocate when he/she asks you a lot of questions about your position, your proposal or the facts. The mediator will not take sides, but will challenge both sides with questions.
  • Help you with ideas and new possibilities for settlement, or new ways to view the situation.
  • Watch out for unexpected consequences for you.
  • Remind you of your most important goals and needs.  It's easy to get caught up in emotions or conflict in mediation.  Remember, you are there to settle and end the litigation!
The Agreement

When mediation is successful in reaching agreement, the next (equally difficult) step is to agree on the wording of the Mediated Settlement Agreement which will be binding on everyone once it is signed. There is no standard Mediated Settlement Agreement. A new one must  be created for each case.
  • Keep in mind, no matter what was discussed or noted, this document controls. Prior discussions or wording have no effect unless they are explicitly included in the Agreement.
  • The Agreement must be very precise and you must be careful to make sure everything is included and correctly stated.  You can't go back later and change or correct things.
  • Your attorney should explain the wording and the Agreement to you to make sure you understand it and really agree. The attorney should make sure to check on whether you are assuming anything that is not included in the Agreement. 
Why is All This Important?
Mediation is required for almost all family law cases in Texas before they can go to trial. Most mediations are successful. Even if they don't settle on the mediation date, a significant number will later settle before trial. Almost no cases go to trial. Therefore, it makes sense to take the process seriously and take advantage of the opportunity to save time and money through settlement!



Saturday, February 1, 2020

Social Security -- Your Safety Net?


Don't Ignore Social Security
While there often seems to be talk about cutting  back on Social Security, it seems pretty clear that it will be around for a while. If you are 55 years old or older, you have a good chance of collecting under the program. Even if you are younger, there's still a good chance that you will receive payments.

I won't get into a discussion of whether it is good or bad or undependable. For now, it's a fact of life and we are all (or most of us) are under its umbrella. It's not really likely to run out of money unless someone takes a drastic step to terminate it, which feels very unlikely.

Income for the Retirement Years
The point of bringing up Social Security is that it is an often overlooked source of income later in life. "Gray divorces" are becoming more common as Baby Boomers are getting divorced later in life.

A big part of the focus in gray divorces is the retirement years. If one or both of the parties have not retired by the time of the divorce, there's still time to add to retirement funds.  Otherwise, the parties just have to split a set pot of money for retirement.

Financial Planning
That's where a financial planner can come in handy. A good planner can help you decide on a mix of assets and Social Security to take you through the retirement years. You may need to generate new income to cover your expenses. That should be coordinated with your decisions on when to start Social Security and whether you are eligible to draw on your spouse's earnings record.

Divorce Financial Planning
If you go into litigation for a divorce, instead of having a Collaborative Divorce, your options are a little more limited. Courts typically just mechanically divide the assets on the table. In Collaborative, we work with a divorce financial planner who usually helps you plan a future cash flow. Then you can be smarter in negotiating the asset and debt division.

Using Social Security for the Maximum Benefit
With the Collaborative process, you can incorporate more planning for the future, including getting the best possible revenue from Social Security.  Postponing the start of drawing Social Security will result in a higher payment each month. Sometimes the big issue is how to get from here to 70 years old so you can start drawing at the maximum level.

If you are in the "gray area", talk to your attorney about using Collaborative Law to work out the terms of the divorce. If the attorney doesn't do Collaborative or recommends against it, you should get a second opinion.

Find an attorney you are comfortable with who has substantial experience with Collaborative Law so you can be guided through the process. It's your divorce and you should be able to choose the process most beneficial to you.  Good Luck!



Wednesday, January 1, 2020

Is It Too Soon to Start on a Divorce!


This is written for January 1st since January is a busy month for people deciding to file for divorce.  Many people put off the decision until after the holidays and that's usually a good thing. There's time for second thoughts and it means that the holidays don't get overwhelmed by divorce conflict.

Of course, the holidays don't mean there's a complete "time out". Conflicts continue, but the escalation from litigation is postponed.

However, sooner or later, the question becomes -- is it the right time for you to start the divorce?  To make that decision, consider the following:

1.  What are the problems?

2.  Are they long-term problems or a recent issue?

3.  Have you tried counseling?

4.  How does your spouse feel about divorce?

5.  Are you prepared financially?
     a.  Do you have cash savings?
     b.  Do you and your spouse have your own incomes?
     c.  Do you have a place to live after separation?
   
6.  Are you capable of managing your finances?

7.  Are you prepared for your spouse's reaction?

8.  Are there kids? Would they be fought over?

9.  What do you have to gain?

10. What do you have to lose?

These are questions that you must think about and answer.  If you are leaning toward filing for divorce, please meet with an attorney or attorneys. You need to get professional help for the serious issues that come up in a divorce. You can discuss all these issues with your attorney so you are as prepared as can be for the divorce. Good luck.

Sunday, December 1, 2019

Are You Really Saving Money by Not Hiring an Attorney?


Sometimes there are good reasons to not spend money. Maybe you don't have much money available. Maybe you are worried about the total commitment once you start spending. Maybe you think it is unnecessary to spend the money.

For important matters, the reasons to spend should outweigh the reasons to not spend. That's not always the case, however. 

If you are facing a divorce or other legal issue, the possible outcomes are so serious you should usually go with the option to hire an attorney for help.

In weighing things to make that decision, maybe you should consider, "what can go wrong" if you don't work with an attorney.  Let me list a few ways.

1.  Your Petition could omit an important issue. It might be retirement, real estate or separate property. Those can be significant factors and could cost you a lot of money.

2.  The Decree could omit something. It might be payment of medical bills, support start dates, assets or many other things.

3.  You might give up more than you should. You might divide your separate property. You could agree something is your spouse's separate property when you don't need to. You might give up retirement earned before or after the marriage, and that's not necessary.

4.  You might trigger tax consequences you did not expect.

5.  You could lose your homestead rights if the real estate is not handled correctly.

6.  Alimony might be omitted even when it is needed and justified or you might pay too much for the circumstances.

7.  You might not get a proper order dividing the retirement accounts.

8.  In negotiating, you might cut off the community estate too soon and lose out on property.

9.  You might end up negotiating without sufficient knowledge of the facts, possibilities and common terms for settlement.

10. Negotiations could turn into a protracted battle with your spouse, a very unpleasant and unproductive situation for you and your spouse.

These are common situations for people representing themselves. They are also very avoidable. These are matters that could impact the rest of your life, including your retirement years. Wouldn't you hate to look back later and wish you had worked with a lawyer to get a better deal?

This is not like the old commercial with the tag line, "Pay me now or pay me later". Here, it's closer to "Pay now or lose out forever.".  You can't undo the property division terms of the divorce decree.

You need to do it right the first time.  On legal matters, you should consult with an experienced attorney to learn the issues and plan your strategy for the best possible outcome.

Tuesday, October 1, 2019

I Don't Want to Use Mediation!


Both kids and adults usually don't like to be forced to do something they don't want to do. If you're an adult dealing with children, you know sometimes you need to force the children to do things that really are beneficial for the children.

That happens all the time for adults going through divorce. Your attorney or the court or the other attorney may tell you that you have to do certain things you don't really want to do.

Sometimes, one of those things is attending medication. There are many objections, such as the cost, taking time off work or you "know" it won't work. But those objections are easily overruled by a court system that now favors mediation as an intermediate step before going to trial.

The simple answer is that you usually have to do mediation regardless of your preferences, but there is some good news. The process usually works. 

Here are some benefits of using mediation:

1.  It's faster than waiting for a trial date. Mediation can usually be scheduled within 1-2 months.  Trials are usually set 6-9 months out.

2.  It's usually cheaper than a trial.  It takes a whole lot less time to prepare for a mediation than to prepare for a trial. That translates into  a big savings for you.

3.  You get to make the decision. When you and the other party reach an agreement, that becomes the final agreement. If you go to court, you turn over all the decision making to the judge who may or may not like you and your ideas. Most people prefer to make their own decisions.

4.  Privacy. Many people prefer to keep their private business, including finances, out of the public view. Mediation is confidential and done in privacy, usually away from the courthouse. Trials are open to the public and you never know who may show up.

5.  Informality. Because mediation takes place at someone's office, things can be a lot more casual. You also don't have to jump through hoops to introduce evidence. You tell or show the mediator anything. Everyone is a lot more comfortable meeting informally with the mediator, rather than following standard courtroom and evidence procedures.

Most attorneys understand that mediation usually settles cases and that it is good for their clients.  Talk to your attorney if you have doubts or if you're just in a hurry to get to court. Mediation is the better path in most cases.

Thursday, August 1, 2019

Don't Rely on What You Hear


When people start thinking about divorce, they often talk with family and friends to get information about it.  Naturally, they look to people who have had divorce experience or know someone who has. That is often a mistake.

Briefly, this is why it is a mistake to rely on what people tell you.

1.  Every case is different. This cannot be overemphasized.  Normally we only get part of the story from someone else. Some facts are forgotten. The legal issues may have been different. The history between the parties may be different from yours. The attorneys may have chosen to focus on or ignore certain legal issues. The way people get along with each other and other people is probably different. The goals and needs of the parties will be different. This list could go on and on.

2.  People sometimes get the facts mixed up. Probably unintentionally, but still a problem.  The more times a story is told, the  more it changes.

3.  Often people are basing their opinions on the law from other states. Believe it or not, laws are different in each of the states. Many times people suggest a course of action that is totally inappropriate in Texas. That happens with research online.

So, what can a person do?  Simple. Talk to an experienced attorney.  If it's a divorce case, talk to a divorce lawyer. If it's a criminal case, see a criminal lawyer. If it's a probate matter, go see a probate lawyer.

The common element is: go talk to a lawyer for important legal issues. Don't gather your information informally and start off on your own.  Talk to an experienced lawyer for your issues and take the advice. You will come out ahead.


Saturday, June 1, 2019

Misconceptions about Mediation without Attorneys


In talking about options with prospective clients, I have discovered a number of misconceptions relating to how mediation works. Many people become interested thinking they can settle a divorce and don't have to pay attorneys. Unfortunately, that is not always a great bargain when people make uninformed, bad decisions for themselves.

Working with an attorney in some capacity can help avoid or minimize problems.  You can hire an attorney and have him/her represent you throughout the divorce process. You can consult with an attorney prior to mediation, or you can hire an attorney to be with you just for the mediation.

As you are deciding whether to hire an attorney, let me point out some common misconceptions I have heard about how mediation supposedly works.

1.  The mediator will listen to both of you and then recommend terms for  a settlement. No. The mediator must remain neutral. Making those decisions for you and your spouse would violate impartiality and lead to the mediator siding with one of you on some issues. You have to make your own proposals.

2.  There's little or no preparation to be done.  Actually, there's often a lot of preparation that is needed. You should gather documents, prepare charts and exhibits and outline the issues and your proposals. You need to have a clear picture in mind for what you want to end up with.

3.  The mediator will make sure you don't make any bad decisions or bad agreements. Wrong. The mediator cannot be neutral if he/she is advising you or your spouse to accept or reject a proposal. I have seen a number of bad decisions come from mediations where attorneys did not participate.

4.  The mediator can prepare the paperwork. No. Again, the mediator must be neutral. Judgment calls must be made numerous times in preparing paperwork for a divorce, and that would violate neutrality.

5.  You can change your mind later after you have agreed. Wrong. Once the agreement is written and signed by the parties, assuming it also contains the statutory warning that the agreement is binding, then the agreement is binding.

6.  You won't be surprised by facts, issues or proposals during the process. No, it happens all the time. With an attorney, you will have an opportunity to respond effectively.

7.  The mediator will make sure you don't overlook something. They cannot take on that role and remain neutral.

Bottom Line:  The 7 statements above are false assumptions made by many parties who try mediation without an attorney's help. Your divorce will have enough financial and family significance that you should hire an attorney so you can settle your case under the best terms for you.


Tuesday, April 2, 2019

How Fast Can We Finish a Divorce?


Some people come to see me and they are in a big hurry to be divorced. Sometimes, both spouses are at that point. More often, it's just one spouse and that can lead to problems (= slower divorce).

Here's the starting point.

There's a 60-day waiting period required by the Texas Family Code.  It begins the day after the Petition for Divorce is filed. That's day one.

You count the next 60 days, including weekends and holidays.

You cannot get divorced until at least the 61st day after the filing.

Another disappointment for some people: 

The divorce is not automatically granted on the 61st day.

To get the divorce granted, you normally must appear in Court with your attorney and the proper paperwork.  Your attorney will tell what he or she needs from you and will prepare the documents needed.

If you are trying to get your own divorce without an attorney, you can do it, but it will take longer. Please contact the Court Clerk for instructions on setting a Court date.

All of the above is about how fast you can be divorced. In a normal case, it will take longer than 61 days. Please talk to your attorney to find out if you can either speed up or slow down your divorce.

Bonus Tip:  If you are in a hurry to be divorced, please tell your attorney when you first talk to him or her. Then you can talk about a realistic timetable.