Monday, April 28, 2008

When is a Hearing Not Really a Hearing?

Answer: Usually, in a family law case, when you go to court in Tarrant County, Texas.

When attorneys set a case for court so they can get something in front of a judge, they most often talk about having a "hearing". In reality, there usually isn't a hearing. There will almost always be negotiations and conferences.
  • Meetings may occur in the courtroom, although the attorneys and parties generally must be pretty quiet.
  • The Tarrant County family law courts have many conference rooms around them, some right outside the courtroom doors and some at various places down the hall.
  • The hallways themselves are usually full of negotiators.
  • Vacant courtrooms sometimes get taken over.
  • The attorneys may go to the Lawyers' Lounge and discuss the pros and cons in considerable detail.
  • They may also meet in a room or hallway behind the courtroom, where the public isn't allowed.

The point of mentioning all that is that the courthouse is set up to facilitate negotiations. The reason? That's how most issues and cases are resolved. Very few true hearings are held and very few trials occur. With tens of thousands of cases already on file and thousands more filed each year, there is simply not enough time, courtroom space, judges and other personnel, to be able to provide a timely trial for everyone.

In reality, most people don't want to have a real hearing and have to testify. They don't want to be cross-examined and don't want their personal lives on display. They also don't want to give up their power of decision-making which they exercise in negotiations. It's a little scary thinking about turning over important decisions to a judge who doesn't really know you and your situation. A hearing be inevitable if the other sides insists on it, but most (although not all) judges really have to juggle their schedules to work in a hearing.

There are usually 10-20 cases set on an Associate Judge's docket each day. Some will be postponed and most will negotiate until settlement. A few will try for a hearing. In many of those cases, the judge will meet with the attorneys and can often help get the case settled by giving an advisory opinion (which could change if the judge actually heard all the evidence in the case) about how the judge views the case or how the judge might rule on certain matters (for example, who pays what bills, who stays in the house, whether spousal support would be ordered, etc.). Sometimes, the judge will have a bench conference with the parties and attorneys present. There are varying degrees of formality, depending on the judge, but it's generally a streamlined process.

For those who insist on a hearing, there is often a substantial wait. During that delay, there are usually negotiations going on. Keep in mind the big picture. Having a trial or a hearing should not be your high priority. That is a means to an end, not the end itself. Undoubtedly, you will have some concrete objectives in mind for yourself. Think long term, how would you like to end up? If you keep your goals and needs in mind, it will make it easier for you utilize the opportunities for settlement when you go to the courthouse in Tarrant County, Texas (or probably anywhere else). Just don't be surprised or disappointed if you go to the courthouse and there's no hearing.

Monday, April 21, 2008

Don't Try This at Home, Folks!

Lots of Dos and Don'ts are posted in blogs on various topics. A recent incident provides an illustration of yet another action to avoid. In case you haven't heard about this yet, please remember to not record and post a video on YouTube complaining about your spouse or ex-spouse or in-laws or anyone else you may be mad about. (I'm sure you're not thinking of criticising the judge -- right?) This is worse than a public spectacle -- it's a world-wide spectacle.

The incident in question is a video prepared by Tricia Walsh-Smith, who is married to a Broadway executive who had the foresight to have her sign a prenuptial agreement before their marriage. A former actress, she shows a range of emotion and impulsiveness that is impressive, in a bad way. If you haven't seen her video, you can see it here.

Needless to say, the video has been by millions around the world and it seems to create the opposite of sympathy for her. While a few people have posted favorable comments, the great majority of comments are highly critical. She went way out of bounds in disclosing personal, intimate details about their relationship. Some people might have felt sorry for her because of the way her husband appears to be forcing her out of their apartment, but even those people are likely to end up disliking her because of what she said.

More importantly, the judge for the divorce will undoubtedly see the video and it will probably unfavorably affect the outcome of the case for her. It's hard to put a good spin on the video. It removes sympathy for her and might give the judge grounds (at least in Texas and probably other states) to give her less in the property division. Any possibility that the husband might have wanted to try to be nice or help her out has disappeared.

Remember: Think before you speak and think twice before you consider making a video and publishing it somewhere.

Thanks to J. Benjamin Stevens of the South Carolina Family Law Blog and Stephen M. Worrall in the Georgia Family Law Blog for the previous posts on the video.

Friday, April 18, 2008

What Once Was Ethan Allen Is Now Just Sticks N Stuff

James J. Gross, in the Maryland Legal Crier blog, has another of his fine, common-sense posts about a topic most attorneys discuss often with their clients. While some items of personal property are worth fighting over, most things are not worth as much as the attorneys' fees incurred in the fight. I recommend that you read his following post and take it to heart.

"Dividing up the furniture and furnishings can be a difficult task in a divorce. But this is the tail wagging the dog. Most of the value of the marital estate is in the house and the pension. Furnishing and furniture might account for 5% or less.

Sometimes when everything else is agreed upon, folks get stuck on dividing the china, crystal, silverware, jewelry or the frequent flyer miles. Whenever this happens, and it is not logical or profitable, I usually think that they are hanging on to the marriage or the fight instead of the property.

If you want a reality check, jewelry is worth one third of what you paid for it, the minute you walk out of the store. Look at the classifieds and you can find used diamonds, which in truth are not one molecule different from new diamonds, going for as little as $500 a carrot. Gold may be selling for more than $800 an ounce, but your jewelry is measured in grams, and the pawn shop will give you around five dollars or so a gram for it.

Furniture depreciates around 20% a year, so if it is five or more years old, it is essentially worthless until it becomes an antique. And if you don’t believe me, go to an auction or a used furniture store.

The Kelley Blue Book is online to tell you what your automobile is worth. Don’t forget to subtract the car loan.

Each spouse can hire an appraiser to value the real estate at $400 or $500 each, then if they disagree they can appoint a third appraiser. Or you can ask a realtor. Or you can simply agree on the value of the house. Zillow.Com will give you a value for free. If you still want to fight about it, Zillow also gives you a range of values or you can fiddle with the assumptions and comparables to get a new value.

I mention all this so that you can weigh the value of what you are fighting for, against the legal fees that it is going to cost to get it."

It's easy to get caught up in the fight or to stand on principle or to seek "fairness", but we need to keep in mind the big picture and make intelligent decisions. It is often wise to skip some battles and instead try to balance the benefit with the cost of fighting or negotiating. You'll later be thankful you did.

Monday, April 14, 2008

Alimony from Wives: It's No April Fool Joke

In a recent post, Dan Nunley, of the excellent Oklahoma Family Law Blog, discussed a recent trend that appears to be slowly building. He cited and reprinted an April 1, 2008, Wall Street Journal article about men receiving alimony from their ex-wives. It appears that in about one in three marriages, the wife earns more than the husband does. If those couples divorce, the wife has a possibility of being ordered to help support her husband after the divorce and that apparently does not sit well with some of the wives who are in that situation. Interestingly, the comments and complaints of some wives paying alimony sound just like comments and complaints some men make when they pay alimony.

As you may know, after a long history of no court-ordered alimony, Texas does permit alimony to be ordered. It has long been possible for the parties to agree upon alimony as part of an overall divorce settlement. There are a number of reasons why parties may reach an agreement for the payment of alimony and it is becoming a more prevalent tool to help reach an out-of-court settlement in marriages which have either a high wage earner or significant assets or both.

Where the parties cannot agree on alimony, a party (wife or husband) can ask a judge to order alimony, but the law is very restrictive in qualifying someone to receive alimony and usually permits it only for a short period of time. There are few situations in Texas where significant court-ordered (and not agreed to by one of the parties) alimony can be ordered, so the situations described in the Wall Street Journal article don't occur in Texas to any degree. Here, court-ordered alimony requires more than just a difference in income or fault in the break-up. Basically, if the party is able to support herself or himself or has assets that can provide the means to support the person, a court is generally not going to order alimony. Also, if alimony is court-imposed (not by agreement),
it will generally be no more than $2,500.00 per month and last for up to three years.

Nevertheless, it should not be surprising in the next few years to see more husbands seek alimony from their spouse for the same reasons wives have traditionally given when they have sought alimony. And we can probably expect the same responses from wives that we have gotten from husbands over the years as they protest the awards. In the end, the same reasons that support alimony from husband to wife can support alimony from wife to husband. A more significant trend will probably be the use of alimony as a tool to help settle substantial property or income divorces in a way that benefits both parties.

Friday, April 11, 2008

What is a Rule 11 Agreement?

You may have noticed that sometimes lawyers tend to slip into legalese in court or when talking with clients or others. To be charitable, using legal terms may be an attempt to be precise, but it still tends to hamper communication with laypeople. A phrase that often comes up in family law cases, but which is often not explained, is "Rule 11 Agreement".

A Rule 11 Agreement is an agreement which is made in compliance with Rule 11 (no big surprise there) of the Texas Rules of Civil Procedure. Rule 11 says that an agreement between the attorneys or parties involved in a law suit can be made enforceable and binding in one of two ways:
(1) if it is in writing, the agreement must be signed by the attorneys or parties making the agreement and it must be filed with the papers of the Court; or
(2) if it is not in writing, the agreement must be made (stated) in open court (while court is in session) and made part of the official record of the case.

The Rule 11 Agreement must be clear and complete. Written agreements can be typed or hand-written. If oral, the record must show that all parties consented to the agreement.

Rule 11 Agreements are used for many different issues when agreements are made during the course of a case. For example, there might be agreements on the amount of child support, a visitation schedule, when documents will be exchanged, how bills will be paid, who gets to claim the tax exemptions, and so on. They can save time for everyone and the requirements of clarity and specificity help ensure that everyone knows and understands the agreement. Done properly, the agreements are binding and can prevent a party from trying to back out of an agreement. They are frequently used when the parties are negotiating at the courthouse and operate to preserve agreements made in the course of settlement talks.

Rule 11 Agreements are a common, ordinary device to help resolve legal issues outside of court. If you are involved in a family law case, you should not be surprised to see the terms of various agreements preserved as a Rule 11 Agreement.

Thursday, April 10, 2008

Tips to Help You Get a *Fair* Divorce

Yesterday, J. Benjamin Stevens, in one of my favorite blogs, the South Carolina Family Law Blog, had an interesting post with some good ideas to help you attain a good result from a divorce. There are some differences between Texas and other states' laws, but many of the points are very appropriate for anyone facing a divorce. Here is what he wrote, along with a few comments of mine

"The following tips can help you get a fair divorce and save you a great deal of time, stress, and money:

  • "Once you have made the difficult decision to end your marriage, begin to focus on the financial issues as soon as possible." That's excellent advice. It may take a while to gather the records you need and the finances are very important both immediately and in the long run.

  • "Get a good attorney to ensure you receive an equitable settlement, and get the best attorney that you can afford." That is very important. I have previously written about how to choose an attorney. You should make sure you have one who is qualified for the type of issues in your case. Experience and local knowledge are very important. Usually, a Board Certified Specialist in Family Law is a very experienced and knowledgeable attorney in that field.

  • "Remember that most states determine the value of the marital assets (including retirement accounts) based on the date the case is filed with the Court." That is not correct in Texas. Here, the value is determined at the date of division. If there are losses or gains in value (for example, stocks or retirement accounts) after the date of separation or the date of filing, they are taken into account when the value is determined by a judge on the trial date. If a case is settled in negotiation, the attorneys usually try to use the most recent values of assets and debts.

  • "Consider when to file your case and whether it might be worthwhile to file sooner or later if you know when significant financial events will occur, such as receiving a bonus at work." Usually, that is not a factor in Texas since the value of the estate is determined at the time of division and there is a 60 day waiting period, beginning with the filing date, until the divorce can be granted. Occasionally, the date of filing can be significant, but most often timing can be affected by health, safety, emotional stability, financial need, or some other factors which can come into play. Sometimes filing is delayed so that the other party can adjust to the idea of divorce. Someone about to file for divorce should consider the whole situation before jumping into the process.

  • "If the mortgage is listed in your name (or both names) and your spouse will receive the house, insist that he/she refinance to remove your name from the mortgage as soon as possible." That is a good way to protect your credit. Leaving the house in both names without changing the mortgage is really dangerous.

  • "Make copies of all recent financial statements, so that your attorney will have an accurate listing of the accounts, balances, etc." I would include virtually all financial documents, including all credit cards, bank records, stock information, retirement account records, and any other financial records. Gather up for your attorney all the records you can find and let the attorney decide what is needed and useful.

Original "Source: "Parting Ways? Your Guide to a Fair Divorce" published in the Erie Times-News."

Bonus Comment: I recommend that you avoid using the word *fair* in discussing anything to do with divorce. Aside from the fact that fair is vague and impossible to pin down, courts just don't spend a lot of time evaluating fairness. Most importantly, what's fair to you is not likely to be considered fair by your spouse, and what your spouse thinks is fair would probably not pass a fairness test for you. It's really more useful and practical to figure out what your needs and goals are and try to meet them. That gives you a more specific target and you will know if you came out well.

Tuesday, April 8, 2008

Why Does Mediation Work?

Mediation is a settlement process in which two parties meet with a neutral third party (the mediator) to resolve issues in a private meeting or meetings. In Texas, the most common type of mediation is the caucus method which usually consists of one session (sometimes two), with each party having an attorney present and the sides usually in separate rooms. The mediator shuffles back and forth between rooms, conveying offers, questions and suggestions. The parties rarely see each other in the caucus approach. In other states, there may or may not be attorneys involved and the parties usually meet and discuss the issues face-to-face in mediation sessions.

Mediation began to be widely utilized in Texas to help settle litigation in the mid- to late-1980s. Since then, it has become very popular, especially with judges. It has proven effective, reasonably priced and safe for the parties. Nevertheless, I still have clients express doubts and frustration when they are ordered to go to mediation before they can go to final trial. They sincerely believe that there is no hope of settlement, usually because the other party is stubborn, crazy, stupid, angry, unrealistic, etc. I always explain (after mentioning that we have no choice if it is ordered by a court) that I have had a large number of "impossible" cases settle through the use of mediation. Let me briefly explain why mediation works.

1. Mediation brings into a dispute a neutral third party with an objective approach to the case whose purpose is to get an agreement. Whatever the mediator does is seen as an effort to reach an acceptable agreement, not to advance the interests of one party at the expense of the other party. Because of the neutrality, a mediator can make tough suggestions and criticisms which will be heard very differently than they would be if made by the opposing attorney. The mediator can also make statements that a party's attorney should (and may want to) make, but which could undermine the client's faith in his or her attorney's commitment to the client's side. It is a way for a party to receive important information, even if it is not what the party wants to hear.

2. A good mediator can de-personalize the negotiations. Again, the neutrality is helpful. A mediator will usually emphasize the value of reaching an agreement outside of court and will try to shape the sessions into more of a business decision rather than something more personal.

3. The mediator usually helps each party understand the range of options, including the best alternative to a negotiated agreement. Often in a divorce, a party starts out with a set of ideas of what he or she wants and the party is unwilling or unable to conceive of other options or any reasons to consider other options. It is difficult for the attorney for such a party to bring up other options in some cases where the party is emotionally committed to a particular outcome. Because of the neutral role of the mediator, it is possible to explain and explore other options. A mediator can also help a party come up with new ideas by brainstorming with the party.

4. An important factor for the success of mediation is that it carries a sense of finality, a feeling that the end of a nightmare may be in sight. In Texas, mediation usually occurs fairly late in the process and after information is exchanged between the parties in "Discovery". The parties are often really ready to end the litigation. One of the factors that often comes into play is that parties become more willing to compromise if they see the reward of wrapping up the divorce.

5. On a related point, when mediation occurs late in the litigation process, a settlement may be achieved because the parties may be worn down or worn out from fighting and arguing. They may be spent emotionally and so is their money. They just are not up to fighting as much as they were originally. Sometimes, they have already collected their pound of flesh and they are ready to end the divorce.

6. Mediation is usually cheaper than a trial and in many areas is a required step before trial. Stable and reasonable parties (there actually are quite a few in the world) recognize the savings they can make by compromising in mediation instead of going to trial.

7. The mediator can play devil's advocate for both parties and educate each party about possible problems with his/her approach. Creating a little uncertainty, or reality, can make the parties more open to adjusting their demands, positions and solutions. Sometimes, a party hears a contrary view for the first time from the mediator since some attorneys are uncomfortable or unwilling to disagree with their clients. Or a party may have just ignored differing opinions or suggestions.

Mediation creates an opportunity for parties to become educated about a number of things that impact of their willingness and ability to settle a case. Experience shows that amazing results can occur with a skilled mediator, even in the most difficult cases. Every litigant should strongly consider, and even look forward to, getting into mediation so they can get the right result that is acceptable to both parties, work in a less stressful, private setting and save time and money.