Tuesday, April 30, 2013

Do You Need an Attorney for a Temporary Orders Hearing?


This will be a short post.  I hear from people all the time who have gotten served with papers and went to a Temporary Hearing without an attorney.

Why without an attorney?  It usually is a lack of money, short notice or not knowing who to contact. 

What can happen?  You can be kicked out of the house.  You may lose custody even if you have been the primary or sole care provider for the children.  You may not get the child support or spousal support you need.  You may get stuck paying a lot of bills.  You may have restrictions put on you relating to the children or where you live or what you get to use while the divorce is pending.   And many other bad things can happen.

Why does that happen?  Because you don't have someone to speak for you who knows the law, the court rules and the procedures.  Judges try to be fair and helpful to everyone, but they have very little time for each case on their docket and there's no time to explain everything to you.  Also, Judges have to be impartial, so they can't do things for you.

Can you get the problems changed later?  Maybe, maybe not.  The sooner you act, the better.

What can you do?  You really need to hire an attorney.  Even if your spouse says he/she wants to work everything out, you need an attorney. You should hire an attorney before the first hearing.  If you don't have time, ask the Judge for more time.  They will often give you a week or so to hire an attorney.  You should take the process seriously because there are serious consequences.  This is not a good time to do it yourself.

What if you can't afford an attorney?  The stakes are so high, you need to find a way.  Courts generally won't appoint an attorney for you.  You should borrow money from friends, relatives, a bank or wherever else you can think of.  You can usually put attorney's fees on a credit card.  This is so important, you need to find a way to pay for an attorney so you really don't lose out.

When you are going to court, please don't try to do it without an attorney!

Sunday, April 21, 2013

Be Informed About Alternatives

If you are facing a potential divorce or other family law issue, you should be considering what legal approach you will use to resolve it.  You actually have several choices.  Here are some comments about different options.  Fort Worth divorce and family lawyers should be able to discuss all of these options with you.  If an attorney tries to limit your choices, you should get a second opinion.

1.  Litigation.  The old standard approach is to use litigation, where one side files in court, sets a temporary hearing and serves papers on the other side.  That starts a cycle of hearings, motions, negotiations, conferences with the Judge and the gathering and exchange of information ("Discovery"), and then more hearings. Sometimes you have no choice.  Litigation is the default system that is used.  If the other attorney isn't trained in Collaborative Law, then you can't utilize it.  Your best approach is to search for a trained Collaborative lawyer who can help you decide whether Collaborative or litigation is the better approach.

2.  Collaborative Law.  This process is a way to stay out of court.  Both parties have to agree to be able to use this process.  We normally bring in a neutral mental health professional (MHP)and a neutral financial professional to work with the parties.  This approach is cost-effective because a lot of basic work is done without the attorneys present.  The parties will each meet with their attorney to discuss the financial and child-related issues.  Then the parties meet without their attorneys present with the financial professional to gather and organize financial information and with the MHP to discuss options on taking care of the children.  With information gathering and preliminary work done, the parties then meet again with their lawyers in joint sessions.

Collaborative Law turns out to be a very efficient process.  We use lower-cost, but more qualified experts to lead the effort on the financial and child-related issues, and then the attorneys help everyone consider the legal ramifications of the different options.  There are more choices and better quality decision-making.

3.  Mediation.  In Tarrant County, and most of Texas, parties do not generally go through mediation without lawyers.  In California and some other states, it is common for unrepresented mediations to occur.  In some cases, it may work out, but the more complicated the facts, the greater the need for lawyers is.  When there are retirement benefits, stock options, various investments with different tax considerations  and other substantial financial issues, the parties need more help than they can get from just a neutral mediator who is on neither party's side.  People with significant or complicated assets or liabilities should not attempt to divorce without legal advice.  A mediator cannot give legal advice to the parties.  A mediator only helps the parties come to an agreement, regardless of what the terms are.

4.  Direct negotiations.  This approach can save a lot of money.  All of the people mentioned in 1, 2 and 3 above don't participate.  On the other hand, someone is probably going to be taken advantage of, or someone will make a serious financial mistake because of ignorance.  Unless there's nothing at stake, this is probably not a good option.

5.  Using forms from the Internet.  There are a lot of bad, inaccurate or inappropriate forms out there.  Even the forms recently published by the Texas Supreme Court are not properly drawn, and are actually intended for a very small number of people.  Forms are often misused.  The results can be loss of assets, unenforceable orders and problems in collecting child support or getting to see the kids.  Unless you have no assets, no debts and no kids, you should avoid using forms to do your own divorce.

Sunday, April 7, 2013

Don't Fear Mediation

In most divorce or family law cases, at least in Tarrant County, the courts encourage or require the parties to go to mediation.  There's always a line on a scheduling order to put a deadline to complete mediation.  The main reason for doing that is that the process works and very few cases actually have to go to trial.

Sometimes, attorneys don't do a good job of explaining how and why mediation works.  In case you are facing a half or full day of mediation and are wondering what to expect and how to act, here's some information that may help you.

1.     Voluntary process.  Although most judges, will require mediation, there is no compulsion in reaching an agreement.  No one can force you to agree to something you don't want to accept.  There will certainly be attempts to persuade both parties to come to agreement, but the bottom line is -- you don't have to agree to anything.

2.     Confidential process.  Whatever you say and do in mediation is confidential (with some very narrow criminal law exceptions), so both parties are encouraged to think and speak freely.  If you make settlement offers, they can't be presented in court against you.  Neither party can testify about what was said in the mediation, so you can make whatever offers and arguments you believe will help your case.  You can make a better offer in mediation than you might in court, if you wish.  That freedom can lead to creativity or more effective negotiations.  You also can feel safe in the process.

3.     Mediator neutral.  The mediator doesn't take sides or make a decision.  A good mediator will often play the role of "the devil's advocate" by questioning each party's positions and arguing like the other party might.  It helps both parties understand each other and can help break through deadlocks.  Dealing with a neutral whose job is to help both parties reach an agreement provides a safe and productive arena for settlement.

4.     Gaining information.  During a mediation, both parties tend to learn more about the other party's positions and motivations.  Mediation often provides a way to get quick and direct responses and information about issues.  That normally doesn't happen in court.  Almost always, mediation helps both parties understand more about each other.  That's helpful even if you don't settle.

5.     Cheaper than a hearing.  Mediation is somewhat costly since you have to pay for your attorneys and the mediator. Still, there is greater preparation required for trial and a greater time commitment for you and your attorney if you go to trial.  A trial is infinitely more stressful than a mediation.

If you have mediation coming up, or your attorney is talking about mediation, you need to prepare for the mediation, but you should welcome the opportunity to come to an agreement in a relatively pleasant environment.  Good luck!