Wednesday, May 28, 2008
1. Start with the end in mind. What do you want to end up with and how do you want the process to be? Do you want a peaceful resolution? Do you expect (or want) a bloody war? Will it be a simple agreement? Do you want to hold down the expenses or spend "as much as it takes"? Are you fighting for the principle of the matter? Do you want an attorney who will wear down the other side or someone who will be very methodical and do everything in the best way possible? What are the issues to be determined? How long do you want it to take? What issues are most important to you? What issues are the most important to the other side? If you evaluate these and other questions, you can better search for an attorney with the appropriate experience and skills.
2. Perhaps the single best source of information is recommendations from your friends. Check around and find out who has used an attorney for a similar case and who liked the attorney. Find some who are recommended and you will be starting in the right direction. Do keep in mind that sometimes an attorney works magic for one client, but leaves another client completely dissatisfied. That's rare, but possible. Best advice, don't stop with just recommendations.
3. Look at the experience of the attorney. More experienced attorneys will usually charge more than newer attorneys. Although you might like to have the best, most expensive lawyer to help you with your case, that may not be necessary. Aim for the appropriate level of experience. There should be some consideration of what's at stake in your case: a few thousand dollars, a family business, custody of your children, complex property division issues, taxation issues, etc. Each requires some different experience and expertise and each probably has a little different value to you. If money is truly no object, by all means get the most expensive and most qualified attorney in the area. Otherwise, think of the appropriate experience.
With a little effort, you can find out a lot of information about an attorney on the Internet. It should be easy to find out how long the attorney has practiced and whether or not the attorney is a Board Certified Specialist. It is equally important to meet the attorney and ask about the attorney's experience in cases similar to yours and in cases in front of the same judge or judges you might see. Find out if the attorney actually enjoys working on your type of case. If not, talk to other attorneys to find someone who likes that kind of work. Each attorney will almost always have certain types of cases (and courts) they like and others that they don't like. It helps to find an attorney who would like to work on your case.
4. Find someone who specializes in family law if you have a family law issue. While you don't have to use a Board Certified Specialist in family law in every case, more complicated or more significant cases may warrant using a Specialist. Some very fine attorneys are not Board Certified Specialists and they can provide top notch service in the most important and difficult cases. You may decide to hire such an attorney once you interview them. What you may want to avoid is hiring an attorney who just dabbles in family law to supplement his or her main practice in another area of law. That attorney could be appropriate in less complex cases or where there's less at stake.
5. Pay attention to the approach the attorney recommends. Some attorneys use the same strategy for all cases. Others don't believe that "one size fits all" and they will customize their strategy based on the issues and facts of each case. Sometimes the single approach attorneys are cheaper and sometimes they're not. When you interview an attorney, find out the attorney's approach and decide if you're comfortable with it. Do you need a restraining order, temporary hearing, full discovery, depositions, a final trial, etc.? Listen to how the attorney explains the necessity or value of his/her approach. Decide if you agree that it is an appropriate strategy for you. If you're not sure, get a second or third opinion. Keep in mind that more fighting means more cost to you, both personally and financially.
6. Consider the chemistry. Are you comfortable with the attorney? Does the attorney really listen to you or does the attorney do all the talking? Do you want an attorney who makes all the decisions for you? Are you compatible with the attorney's personality? If your gut feeling is "No", just follow it, even if you can't articulate a reason. Chemistry is very important is establishing trust and a good working relationship.
7. Discuss attorney's fees. Don't get started without an idea of what the cost will be, or at least how the fee is determined. Will it be an hourly fee or a set fee? What is the retainer amount? How often will you be billed? Can you get the other party to pay? What types of costs will be included in the bills? If it's billed hourly, is it affordable for you? Do you have a source of funds that will be adequate for the case? Keep in mind that different attorneys charge different rates and retainers and some will have alternative billing arrangements. If you don't feel like you can afford the attorney you are visiting, keep checking with other attorneys until you find someone who is a financial fit. Many attorneys can give you referrals to other quality attorneys they know who might fit your financial circumstances better. Be realistic on the fees. If you can come up with a retainer, but probably can't afford to make any additional payments once the retainer is gone, then you shouldn't hire that attorney. That relationship isn't good for you or the attorney.
The bottom line is that you need to invest some time into finding a good attorney for your family law case. Get all the information you can, make sure you are compatible with the attorney and that the attorney is qualified for your case, and choose someone who is affordable for you. There are plenty of attorneys out there and you can certainly find a good one for your case if you put the effort into it.
Wednesday, May 21, 2008
In most cases, that is not a problem because the husband is the father. In a few cases, however, there can be a problem if the husband is not the father, but the real father and/or the husband are not aware of the real facts. Apparently, the law would prevent the real father from belatedly establishing his paternity and building a relationship. It would also prevent the husband from possibly avoiding paying child support for a child that was not his. As a result, sometimes men are forced to pay child support for children who are not their children.
In Texas, while there is a presumption that the husband of a mother is the father of a child born during their marriage, in most cases it can be attacked as long as there has not been a court order formally stating that the husband is the father. DNA testing is an acceptable method of proving or disproving such paternity.
Not being able to prove or disprove paternity, as in the Kentucky or Oklahoma situation can lead to some problems. It could prevent a child from learning about potential hereditary health problems. It could also cut a child off from relationships with his or her rightful family and from potential inheritances.
Texas law does have another problem that can arise where there is an order finding that someone is the father of the child. Sometimes husbands just assume that they are the father when they really aren't. If they agree initially at the time of divorce that they are the father and later find out that they aren't, it is virtually impossible to undo a finding that they are the father. That's true even if DNA tests show that the ex-husband is truly not the father. The current law attempts to provide stability for children by not allowing re-litigation of paternity after it has been determined officially. That apparently outweighs, in the eye of the law, the harm done to a man required to pay child support for someone who is not his child.
The bottom line is that parents need to be careful and truthful about paternity. That is also true of men who have even brief relationships with women. There are probably many more sad stories of injustice relating to paternity.
Sunday, May 18, 2008
Stephen Worrall, in the Georgia Family Law Blog, recently posted about a trend that seems to be happening everywhere. Computers more and more are becoming an interesting and useful source of information about the parties to a divorce. Sometimes, evidence from a party's computer can turn a case around. Instead of hiring a private detective, it may be better to investigate the fingerprints left on the Internet. Here is Stephen's comment:
Lipstick on the collar? One too many late nights at the office? Internet browsing histories?
Divorce lawyers are seeing an increase in the number of cases that cite Web logs as evidence, according to the American Academy of Matrimonial Lawyers.
About 79-percent of divorce attorneys polled by the Academy reported an increase in the number of cases using Internet browsing histories during divorce proceedings in the past five years, while 44-percent cited an increase in the use of spyware to gather evidence.
"Many spouses will use the Internet in order to act anonymously, but in many ways it's the most public thing someone can do," James Hennenhoefer, president of the AAML, said in a statement. "Internet activity can provide valuable glimpses into the kinds of hidden activities that a husband or wife might be trying to conceal and spyware programs can help to make this kind of monitoring extremely easy to conduct."
Evidently, typing things like "how to cheat without getting caught" into Google, signing yourself up for a marriedbutlooking.com account, or writing up one too many "casual encounters" posts on Craigslist is not advisable if you'd prefer to emerge from divorce court with your bank account intact.
Think about that when you're taking advantage of the open bar at your friends' weddings this summer. Forget the blenders and the Williams Sonoma gift cards. It's all about the tracking software. Ah, romance.
Wednesday, May 14, 2008
Although I haven't done any research on the topic and can only speak about my own experience, I haven't found the economic downturn to be a significant contributor to divorces. The number of people calling about divorces seems to be pretty steady and there has been no noticeable increase in the number of cases I have accepted. Actually, one effect of the economic situation is that probably some people are having more problems in coming up with the funds to pay legal fees.
Money certainly can be an issue between spouses, but that is just as true in good times. In economic hard times, there may be a tendency, at least in the short term, for couples to stay together and jointly battle through the financial problems, sharing the work and rewards. In good and bad times, there always seem to be an abundance of divorce and other family law cases.
One factor that may be a change and that is showing up more and more is that there is sometimes less in assets to divide. In fact, in many families, the amount of debt to be allocated is greater than the value of their assets. Once families split up, that problem becomes worse because there are suddenly more expenses that must be paid, but there's no increase in money to pay the bills with. In addition, there are major student loan balances to be paid; with tuition and fees going up and less college funds to give out, students and/or their parents get stuck paying back high debts for years. Add to that the big mortgages that used to be easily available. Many people ended up in bigger houses than they needed because it was easy to qualify for the mortgage and it looked like the payback would not be a problem.
There are a few solutions to the financial problems: win the lottery, inherit substantial assets or own an oil or gas well. For pretty much everybody, those are not anything to count on. Instead, a divorce financial planner might be an excellent investment. We use planners in Collaborative divorces, but they could be used in traditional litigated divorces either working with one party or working as a neutral for both parties, if the parties are fairly cooperative. The divorce financial planner can help with projections and tax advice which can give a new perspective leading to solutions to issues that may have lead previously to deadlock and argument between the parties.
The lesson to be learned here: if a solution is impossible for the situation you face, change the variables and look for solutions in completely new and different areas (outside the box). Throw out the old limitations and just ask, "Why not?".
Friday, May 9, 2008
To effectively analyze the situation and come up with an appropriate answer, you need to dig deep and come up with the real reason why you might want to keep the house. Here are some possible reasons.
1. You really love the house. Some people have no special feeling toward a house. Others profess undying love for their house. It may be the location, location, location, or there could be some unique features in the house that you really can't find anywhere else. Maybe it's the layout or the closet space or the garage or the storage or the yard or the pool or something else. Maybe it's your "dream house" that you searched for forever. Maybe you really love the neighbors. The truth is that there are great houses in the world, but almost all can be replaced. There can be many other great locations and neighbors. Other houses may have a whole host of wonderful features. And you can gradually create a new dream home somewhere else. If you got transferred by your job to another city, you would have to cope with the change.
It may be helpful to write down what it is about the house that you really love. You can add what unique attributes you find in the house. It's also helpful to remember that no house is perfect. Even the best of houses probably has room for improvement. Write down what you would want to change if you were able to. Those issues would help you make a more realistic evaluation. If you take the good and the bad factors together, you will have a checklist of factors to consider in looking for another house. Writing the bad factors down will give you some perspective and remind you that the house was not really perfect, and writing down all the factors will help you realize that there can be more than one house for you.
2. Financial advantages and disadvantages of the house. Whether a person wants to keep the house often relates to financial issues. If there's a low interest rate, low mortgage balance or low payments, the homeowners are often reluctant to give up the bargain they are enjoying. On the other hand, if there is a substantial equity in the house, many parties prefer to sell the house and cash in their chips. Other people face high mortgage payments which may be unaffordable for just one of the parties. Some others fear that they wouldn't qualify for a new home loan with just their income and perhaps the parties' credit rating has deteriorated over the years if they struggled financially. The owners need to realistically assess their situations for the future to decide if it makes sense to try to keep the house.
3. Punishing the spouse. Some parties will want to have the house sold out from under the spouse to get back at the spouse for real or imagined slights or to be controlling. If one spouse knows the other spouse really wants to keep the house, the first spouse may threaten to have the house sold in order to frighten and control the other party. Some parties may try to keep the house to keep the house away from the other spouse or to try to tie up their soon-to-be-ex-spouse's credit.
4. Keeping the house for the kids. This reason is often a subterfuge for the parent with the kids. While there can be many factors that make a house enjoyable for kids (similar to #1 above), houses and schools can be replaced. Some parents will argue that they need to house to maintain stability. That can have some effect, but there will be change in the kids' lives no matter what and kids are generally pretty resilient. There will be a visitation order that shares time between the parents and the kids will probably be spending considerable time in two separate households. One parent is really trying to blackmail the other if they are saying they need to keep the house for the kids. The adults are entitled to at least equal consideration on the house issue.
5. Party owned the house before marriage. In Texas, that makes the house the separate property of the owner and the court will not ordinarily have the ability to take away the separate property from the owner, assuming the owner can provide sufficient proof of the prior ownership. There are a few ways for the other spouse to get some money out of the house, but they probably can't become the owner or force the owner to sell it. In Texas, however, either spouse can claim a homestead right to possession of the house, and that would enable them to continue to live in the separate property house of their ex-spouse for a while. The homestead right does not create ownership, however.
6. Inability to sell the house. There are often reasons why the house can't be sold, even without legal impediments. The house may be in such bad condition that it can't realistically be sold at all, or it could only bring a small amount of net equity. The housing market could be really down in certain areas with the result that houses aren't selling or they're selling for very low prices. Some areas have had a lot of new house building currently or recently which makes it virtually impossible to sell a pre-owned home, much less make anything on the sale, in that area. Some parties are upside down with their mortgages and owe more than the house is worth. They would have to pay off the balance of the mortgage in order to complete the sale, and it's hard to get people to do that.
There's something about a house that seems to make people behave irrationally. If you think you want to keep the house after your divorce is final, look at the above considerations before deciding for sure that you want to either sell it or keep it. There's often a lot of money at stake, so the decision should be made rationally, rather than just emotionally. And it's a good idea to consult with your attorney about this decision before you make it.
Sunday, May 4, 2008
In a recent series of events, a politician running for public office in South Carolina apparently got involved with a woman who was going through a divorce. Ben Stevens, in his South Carolina Family Law Blog, wrote about a Spartanburg City Council candidate who has an angry man driving around town with a big sign on his pickup truck naming names and accusing the candidate of adultery. The candidate denies the claim, but he has to be very embarrassed and probably will be hurt when the votes are totaled. If the angry man's wife had waited until she was divorced before she started dating, that trouble might have been completely avoided.
Although dating was not the triggering event, the recent You Tube rant by an angry New York wife shows another possible venue for embarrassing a wandering spouse. She will surely not be the last spouse to utilize the internet for revenge.
In the Information Age, there are more and more ways to hurt and embarrass someone, so people going through a divorce should be very careful with their behavior. As much as people hate to hear this, it is still advisable not to date until the divorce is final. There can be legal consequences that may affect the outcome of the case,but the results of emotional reactions can be even worse.