Saturday, August 25, 2007

The Pitfalls of Modern Communication

There are more and more ways to communicate. Sometimes we intend to communicate and sometimes we are recorded in some fashion without our knowledge. Government and businesses, as well as some private citizens, are increasingly gathering information about people, even when the people are not involved in litigation. When litigation is on-going, there is even more monitoring and recording of various aspects of our lives. With that in mind, the following warnings may be helpful to keep in mind when you are involved in the court system in some way.

1. Be careful what you say. Voice mail seems to be everywhere when people don't answer their phones. Most people don't think twice about leaving a recorded message, but they really should think about it when they are or might be involved in a court case. It's always best to think about how your message, especially one made in anger, would sound when played in court. In addition, your non-recorded statements made to others can fairly easily be testified about in court. Think about how your words might sound when someone else is repeating them from memory. Also, telephone calls can be recorded, sometimes legally, sometimes not. They also may be played in court. Statements can also be easily recorded by tiny voice-activated recorders or by most cell phones now. Bottom line -- think before you speak.

2. Be careful what you do. Just as in the case of voice recordings, your image may be recorded in various ways, some you may know about and others which you don't know about. Small video or regular cameras are easy to carry and pull out to get pictures. The same is true for cell phones with camera capabilities. It doesn't take long to show up on You Tube. Security cameras are becoming more and more common. Going into some stores permits your image to be recorded.

In addition to your image, your activities are being recorded. Various government agencies keep more and more records. Some may be accessible through the Freedom of Information Act and other means. Toll tags make it possible to track your driving habits. Cell phones can sometimes be traced to find your location. Using credit or debit cards creates a trail. Bottom line -- think before you act.

3. Be careful what you write. There are many ways to send written messages which may come back to haunt you. Among the now-common fairly new means of communication are email, text messaging and instant messaging. Various other computer records are also possible to uncover. Old fashioned methods, such as "snail mail", notes, cards or signs, can be produced in court to embarrass or contract someone. Bottom line -- think before you write.

4. Be careful how you record things. There are still some rules and laws that apply to gathering and recording information on people. There are various federal and state rules and laws that apply. Wiretapping is generally forbidden (although not for the government). Bugging by hidden microphones or cameras may violate laws and the products may be inadmissible in court. There can be civil liability for violation of some laws or someone's right of privacy (which seems to be shrinking). There are different state and federal laws regarding recording phone calls and a local attorney should be consulted before you undertake such actions. Bottom line -- think before you record.

The best advice is to assume that whatever you say, write or do will be recorded and then displayed in court or in public. Act appropriately.

Saturday, August 18, 2007

Should You Leave Your Child Home Alone?

In Texas, we are about to send our children back to school after a longer than usual summer break. The Legislature decided to move back the public school start date to August 27 for most students, so we are down to the last week of freedom (for the students) or the last week until freedom (for parents).

In July, Jeanne M. Hannah wrote in her Updates in Michigan Family Law blog about the problem that will usually face parents at some time: when is a child old enough to be left home alone? She was discussing the issue in the context of summer vacation, but the substance is the same any time during the year. Michigan apparently has a statute that gives some guidance to parents on that issue, but Texas does not. There is no set, across-the-board age when it suddenly becomes legal for a child to be left alone.

As school starts, many parents will have to determine how to take care of a child (or children) after school and before the parent or parents get home from work. It is often a very difficult problem for single parents. It can also be just as big a problem when both parents work in a two-parent family. Safety is the most important consideration, but avoiding mischief and making productive use of time are also very important. Problems can arise even when one or both parents are present, but there are greater opportunities for problems when no adults are supervising.

Creating computer game zombies is really no solution. There are, however, a number of things that can be done to alleviate the problems. Here are some ideas that can be used as starting points:
  • Hire a nanny or babysitter.
  • Work out a cooperative supervision ("kid-pooling") arrangement with other parents.
  • Have frequent and verifiable communications with the children.
  • Enroll children in extra-curricular activities that are run by responsible adults, such as sports, music lessons, martial arts, Scouts, etc.
  • If old enough, a child could get a part-time job.
  • If old enough, a child could volunteer to work in some public service jobs.
  • Hire a tutor.
  • Join community programs at Y’s, Boys and Girls Clubs, or city or neighborhood programs.
  • Find some other relatives who can watch (and help) the child.
  • Have the child attend an after-school program at his or her school, if one is offered.

A little brainstorming with both parents, and maybe even the child, can lead to many ideas and some creative ways to safely and beneficially occupy the child’s time. Each parent might be able to supervise part of the time. If the parents have a good relationship, they may be able to share the responsibility. If the parents can’t work well together, perhaps the more responsible parent can enlist others to help out. Even if parents must leave a child alone, they should stay in close contact and have safety backup plans.

Common sense can go a long way. This is an issue that should be anticipated well in advance. There might be time to develop a good foundation: having a close relationship, mutual trust and excellent communication with the child will be helpful. If the parents model good behavior and habits, it will be easier for a child to act that way as well. As children get older and more mature, it will be easier to leave them home, but parents need to help children keep motivated to get homework done and be productive. Underlying all this, it is important to provide a safe environment for the children and keep them busy.

With just a week before most students go back to school in Texas, hopefully arrangements have already been made. If not, there’s still time to work out plans. Good luck!

Monday, August 13, 2007

Just What the Doctor Ordered: Alimony

One word that evokes strong feelings of love and hate in the divorce world is "alimony". It’s obviously related to that other word with similar connections to love and hate: "money".

In Texas, alimony can be awarded while a divorce is pending or after it is final. Attitudes of judges, lawyers and the parties often make "temporary" alimony a very limited option, and post-divorce court-ordered alimony is very rare in Texas because of both the long-ingrained attitudes and a very restrictive statute that makes it difficult to qualify for alimony and permits only a small amount for a short duration. On the other hand, voluntary alimony paid by agreement can be very flexible and mainly needs to comply with IRS regulations.

In some divorces, clients refuse to consider alimony in voluntary settlements. That is a very short-sighted approach. It is often because of popular misconceptions that assume Texas alimony law is like alimony in other states where it can be almost automatic, substantial and long term.

Wiser and more creative parties discover that alimony can be an excellent tool that helps cases settle. It can enable both parties to meet their goals and needs, while providing tax relief for the paying ex-spouse. The parties need to make sure that it is not used to replace child support and that it is not tied to events or dates relating to children; the IRS really looks for disguised child support. Done properly, alimony can be a cost-effective means to help the other party get on his or her feet, start a new career or deal with other transitional issues resulting from the break-up of the family.

Alimony payments can promote good will within the family which may trigger a willingness to make concessions in other areas. While alimony may not be appropriate in every case, it certainly should be considered for the benefit of both parties in a high net worth divorce situation. In many long-term marriages, one spouse has not worked outside the home for years and that spouse will need some extra help. Providing that help in a thoughtful and creative manner can lead to a win-win situation for both parties, which is the best cure for a family in pain.

Sunday, August 12, 2007

Mediation vs. Collaborative Law in Texas

Recent posts by the Oklahoma Family Law Blog and the Kansas Family Law Blog discussed the differences between mediation and Collaborative Law. From state to state, there are always some differences in laws, and that is also true in this area. The differences are not huge, but are noteworthy. The following is a similar discussion of the differences between mediation and Collaborative Law, but in the Texas context:

1. In Texas, attorneys are generally present during mediations, just as they are in Collaborative cases. In several other states, the parties usually attend mediation sessions without attorneys.

2. Texas mediations are most often conducted using the caucus model. The parties and their respective attorneys usually stay in separate rooms, with the mediator shuttling back and forth between rooms to convey and discuss offers and objections. There is little or no face-to-face contact between the parties at most Texas negotiations.

3. Mediations in Texas are usually a one-shot process, scheduled for all day or half a day, with no subsequent sessions. Sometimes, complex cases result in marathon sessions. Rarely, there are follow-up sessions to try to complete the settlement. The result, especially in half day mediations, is a lot of pressure to settle quickly, without much time for generating alternatives or considering consequences. Collaborative Law cases are usually resolved through a series of relatively short negotiating sessions.

4. Collaborative Law cases in Texas often involve neutral experts who work for both parties. In mediations in Texas, there’s usually no expert at the mediation, or there may be two of each kind of expert, one for each side. There’s usually no communication specialist or coach for the parties in mediation to help them be more effective in negotiating. As a result, bad behavior is not moderated.

5. The lead up to each system is also different. In Texas cases, mediation usually occurs after there have been court hearings, formal discovery and exchanges of offers and counteroffers. There is a spirit of competition and settlements are considered in part in comparison to what the parties think the judge might award. In Collaborative cases, there are no court hearings, formal discovery or preliminary exchanges of offers. There are a series of meetings where issues are discussed and information is voluntarily exchanged in a spirit of cooperation. The objective in a Collaborative case is for both parties to achieve their goals, rather than to just maximize the settlement for one party.

6. The basic problem-solving framework is different for each approach. In a Collaborative case, the parties first identify their goals, then gather information and share it. Next, they identify the issues and brainstorm possible solutions. After the parties evaluate the potential solutions, they negotiate to reach agreement. In most mediations in Texas, positional bargaining is the most common approach. For example, someone may think that 55% of all the assets is what they should end up with, so they start demanding 65 or 60% of the assets so they can compromise and reach their target.

7. In Collaborative Law, there is no threat of "just letting the Judge decide". Unfortunately, that is a common ultimate fall-back position in Texas mediations.

While this post may sound pretty derogatory about mediation, that is only true when Texas-style mediation is compared to Collaborative Law. If there were a possibility of several sessions of mediation and the parties negotiated face to face and if the parties used interest-based negotiations instead of positional bargaining, the process would be greatly improved. Even as it is practiced in Texas, it has a tremendous value and has settled probably 90-95% of the cases where it is used. It is usually better than letting a judge decide the matter and the parties often are happy with the settlements they reach. The value of mediation is affirmed by the fact that it is sometimes used in Collaborative cases as a tool to help settle some issues while the parties are still in the Collaborative process. Clearly, there’s a need for mediators as well as Collaborators.

Wednesday, August 8, 2007

Creating an Emergency Fund, or Living with a Reduced Standard of Living

A couple of days ago, Grant Griffiths (Kansas Divorce Lawyer and Attorney) had another excellent post highlighting a continuing problem couples experience. As he noted, many many couples’ problems stem from conflicts over money – needing more, wanting more, how to spend it, who should earn it, etc. One way for couples to avoid problems is to plan ahead by setting up an emergency fund. It takes some resources and a lot of discipline. Grant referred to another blog,, which is doing a series on Financial Literacy 2007. The Bankrate post had "28 ways to save for an emergency fund" which had some excellent and very practical ideas. Any couple implementing these ideas will really benefit in many ways.

Reading through that list, I was struck by the good advice which could also apply to the common situation arising in divorces, the need to change one’s standard of living. In most divorces, adjustments need to be made because the money and resources originally used to support one household (often stretched tight at that) suddenly must be divided in some fashion between two households. Few families are in a position to split up and still maintain their old standard of living. While not all the suggestions contained in the Bankrate post will work for all families, there are plenty of good ideas that will work for many families. This is a good place to start planning for new financial realities. It’s great advice to help deal with future emergencies, but even more, it’s a roadmap to economic recovery after a divorce.

Saturday, August 4, 2007

Divorce Myths

James Gross of the Maryland Divorce Legal Crier blog recently published the following list of divorce myths.

1. A divorce will solve all my problems.

2. The judge will see that I am right.

3. The judge will never believe my spouse.

4. I will get revenge for the way my spouse treated me.

5. The judge will not make any mistakes.

6. I will win my case.

7. My spouse will lose.

8. I can afford the legal fees for my divorce.

9. I will get justice from the court.

10. The meanest and most aggressive attorney wins.

11. It will be over within a reasonable time.

These are just as true way out here in Texas.