Wednesday, February 29, 2012

New Tarrant County Family Courts' Rule on Electronic Devices

There's an important new rule that the Tarrant County Family Law Courts are enforcing.

Everyone entering a courtroom must make sure that all electronic devices are turned off. That includes phones, smart phones, computers, electronic readers and any other electronic devices.

The rule applies to attorneys, parties and witnesses. It also applies to the audience.

Apparently, there have been some secret recordings made of court proceedings which were then published on the Internet, which is obviously easy to to. Most likely, the recordings were intended to embarrass or harass the other party, or maybe to influence other witnesses. Also as we all know, recordings can be manipulated and distorted. There is no legitimate need to make those personal court proceedings even more public than they are.

The posting of the recordings, audio or video, in the future will have serious consequences to whoever participates in the recording or posting.

Attorneys will have to ask permission to be able to turn phones or computers back on, and they are still subject to the no-recording rule.

For good cause, which is up to the Judge to decide, a party might be able to turn a phone or computer on, but the no-recording rule remains in effect.

For what it's worth, you can still talk about what happened in court, after it's over, unless the Judge places some restrictions on the parties. Nevertheless, it would be wise to think before you speak. Whatever you say can and will be used against you!

Tuesday, February 21, 2012

How to Settle a Litigated Divorce Case

Although every case is different, there are some steps that you can follow to try to settle a divorce case in litigation. I say "try" because one side alone cannot control the outcome. Approaching the case in a logical and rational manner may help move you to a reasonable solution, but keep in mind that rationality is often in short supply in divorces. Still, it should help to know what to expect.

1. The first step is to establish your objectives. What do you want to accomplish? How do you want this to turn out? How do you see your life after the divorce? You should broadly define your interests, needs and goals regarding assets, paying bills, living expenses, housing, child support and visitation (if you have minor children) and retirement plans. Knowing where you want or need to end up will help determine your course of action.

2. Gather information. There are a number of posts in this blog and others dealing with information you need to gather. In litigated cases, there is often formal discovery, which consists of written requests for providing documents and other material, written questions to be answered and possibly depositions, among other things. Your attorney will direct you on the specifics, but you should expect to need information for at least the last 3 years, including tax returns, bank statements, credit card statements and financial statements, among other things. It would also help to prepare both a current budget and what you would expect your budget to be post-divorce, to help with planning and determining your needs. Sometimes experts are hired to determine the value of certain assets, including businesses, pensions or real estate.

3. Consider the motivations and interests on both sides of the case. Analyze what you think would motivate your spouse to come to a reasonable agreement with you. Sometimes, it seems like nothing can make your spouse reasonable. In reality, there's always something that each party really wants or needs, or fears. When you figure that out, you will be better able to get the case settled. Hopefully, you can figure out how to meet your spouse's interests at the same time yours are being met.

Sometimes, you need to mix in a dose of reality. No matter what you or your spouse wants, the judge may never order it or approve it. That should be taken into account. At the same time, there may be some issues that the judge has clear, standard rules about and you will need to conform to his/her approaches.

Also, some battles are limited by the fact that one or both parties lack the money or motivation to continue a fight. Real practical considerations should come in here, although some people insist on fighting even when they have run out of money.

In addition, encouragement to fight may be coming from the other party, the other attorney or the collection of unofficial advisors that everyone going through a divorce gets advice from. You need to figure out the source of the advice to fight so you can try to counteract it.

4. Work out a comprehensive agreement. You need an attorney with experience in negotiations. Rarely does the process go smoothly or quickly. That can be very frustrating, especially when one side is really stuck on one position. Don't expect your spouse to see things the way you do. Compromise is a necessary element on both sides.

One way to improve your chances of success is to use a mediator. Your attorney can help pick out a mediator who is appropriate for your case. Mediators generally have a success rate of 90% or better. Most Tarrant County divorce courts order cases to go to mediation before being able to go to trial. Obviously, it is a very effective way to settle cases. Your attorney will help you prepare for mediation.

5. Final steps: prepare the paperwork and get it signed. The more complicated the case, the more paperwork there is, but there will always be more than you would expect. It sometimes takes a while for the attorneys to agree on the wording, so don't be surprised if it takes a while to complete the paperwork. Even though attorneys use somewhat standard forms, there are always changes to be made to match the terms that were agreed upon.

Note: If you are lucky enough to be able to use Collaborative Law to settle your case, the steps are similar: Set Goals; Gather Information; Develop Options for Settlement; Negotiate to Agreement; Prepare the Paperwork. BUT, the tone and atmosphere are very different in Collaborative. Check it out on this blog and my Texas Collaborative Law blog for more information.

Tuesday, February 7, 2012

"What Would You Do?"

Clients often ask me to tell them what I would do if I were in their place when we are at a crossroads in a case. That's an understandable question when facing a difficult decision, but I don't like to try to answer it because: (1) it's really not my case, (2) it's not my life being affected and (3) I can't fully put myself in my client's shoes. Instead, I try asking questions that help my client consider different points of view and better understand the consequences of different courses of action.

A recent article in the Huffington Post online
answered the question, "What do Divorce Lawyers do in Their Own Divorces?" It's a good article and I agree with the analysis and conclusions. The answer is that divorce lawyers, who know the most about the system, try to stay out of court. They negotiate and try to settle their cases without court appearances, or at least without going to trial. Just about every divorce attorney or judge I know who has been divorced has worked very hard to keep their case out of court. Here are some reasons why.

1. Going to court often wastes time, energy and money. Courts don't run on time and are often very slow. It is very common for cases to get reset and it drives clients crazy -- understandably so. It's stressful getting ready and appearing at court. And of course, it's very expensive: waiting around, slow hearings, breaks in the hearings and resets all add to the bill. On many levels, going to court is wasteful.

2. Court is never like the movies of TV. Whether you like Perry Mason, The Practice or Boston Legal, they don't portray what you will experience.

3. Attorneys know the consequences to fighting. Some attorneys will encourage fighting because they sense that's what their client wants to do, and sometimes there's no choice if the other side chooses that approach. Still, attorneys know that fighting is ultimately destructive and expensive. If they can avoid it for themselves, they will.

4. There's really no winner if you go to court. Sure, you will probably eventually get a decision from the judge, but you very likely won't be satisfied with a lot of it. Judges tend to spread out the pain and have something good and something bad for both parties. Judges rarely see a case where only one party is at fault. Almost always, both parties have done bad or dumb things that can tick off the judge. You can't control the decision-making when you turn it all over to the judge. Judges must follow legal and evidentiary rules that can be frustrating for the parties who expect that they will win because they will just tell the judge "the truth". That doesn't really happen.

5. You usually don't get your day in court. Over 90% of cases will settle without a trial. That means you don't get to testify and have the judge praise you for your courage and honesty.
Even if you go to court, you never really get to say everything you would like to say. Most people leave the courthouse pretty upset about something in the judge's decision or how a hearing was handled.

So, what would I do?
  • Listen to your lawyer when he/she tells you to consider a settlement offer. Make a settlement your main goal.
  • Consider using Collaborative Law. It is a process that leads to peaceful, rational agreements between parties in a safe environment. Check out my Texas Collaborative Law Blog for more information.
  • You can also consider doing mediation early and not waiting to the end of the process, just before a trial, which is a common scenario. If you and your spouse start off preparing for mediation, it will be more efficient and will save money and reduce stress for both of you.