Should We Fight or Should We Talk?

For many people, the title states the choices they see when they approach a divorce (or a divorce approaches them!).

You might as well recognize that talking is the better option.  Here's why.

No matter how angry someone is at the beginning of a divorce, the parties almost always end up talking and reaching a settlement.  In some cases, though, the parties spend a lot of time fighting before they start seriously talking.

Divorce, contrary to popular perception, is ultimately a process of agreement, although many people manage to take detours onto argument trails and delays.  Fighting takes time and money, but some people get blinded by anger or a desire to punish or get revenge for their spouse's bad behavior, which may be real or imagined. In addition, many people wrongly assume that divorce centers around courtroom battles.

Eventually, fighting usually subsides as anger wanes, money is dissipated or the parties face a date in court.  Facing a choice between letting a Judge make all the decisions or making their own decisions on the outcome, most people choose to control their own destiny.

Here's a simplified version of the standard, Texas divorce process:

1.  File a Petition for Divorce.
2.  Get notice to the other party.
3.  Have a temporary hearing or hearings on various matters, or reach informal agreements.
4.  Gather information, either formally or informally.
5.  Negotiate to final agreement, very often in mediation, or in rare cases, have a final trial.
6.  Prepare a Final Decree of Divorce and get it signed by the Judge.

The opportunities to negotiate are numerous.

• Prior to filing.
• Immediately after filing.
• At court, each time there's a hearing scheduled.
• After the information is exchanged.
• Informal final terms negotiations near the end of the case.
• Mediation.

For the best results, I suggest that you:

• Always be prepared to negotiate -- Get the information you need and make a plan for negotiations to create options to meet your needs.
• Always be willing to negotiate -- Don't let anger or revenge keep you from doing what's best for you in the long run. 

Negotiating is a sign of intelligence, not weakness.

Who Do You Want to Decide Your Future?

Here's a simple rule for divorces:  Despite what some people think, divorces are not simple or clear cut, unless there are literally no kids and no assets.  That eliminates cases where there kids, but you think you can agree on everything; they are still complicated.  That rule also eliminates cases where there's a retirement plan, real estate, debts, jointly owned assets or many other complications.

For most divorces, that means that someone has to make some decisions.  The possibilities are you, your spouse, you and your spouse together or a judge, in most cases.  So who do you want making the decisions?

1.  You?  That would be easy, but it's not likely your spouse will agree.

2.  Your spouse?  You wouldn't want to agree to let your spouse make all the decisions.

3.  You and your spouse?  That might work, depending on how you do it.

4.  A judge?  Most people, when they really think about it, don't want a stranger who doesn't know them or care about them making decisions to determine their financial and parenting futures.

So how can you and your spouse keep control of the decision-making?  Here are three options:

1.  On your own.  This sometimes works, but the most common outcomes are lop-sided agreements where one party has taken advantage of the other, or the parties get mad at each other and the discussions blow up.  You are lucky if this approach works, but someone is probably going to be taken advantage of.  If this approach doesn't work, you still have two other options.

2.  Mediation.  Mediation is a great process, but parties can still be taken advantage of if they don't have attorneys.  I am a mediator and strongly believe in the process, but everyone needs to be prepared and the parties really benefit from working with an attorney before and during mediation.  Without attorneys, the parties may overlook some important rights, issues or solutions.

3.  Collaborative law.  This is a process that requires that the parties have attorneys from the outset, but everyone also agrees to not go to court.  They agree to have a series of meetings, to work toward announced goals, and follow a logical process of working through issues to reach agreements. In Texas, we usually bring in a neutral therapist and a neutral financial advisor to help both parties. They actually help the process move along more smoothly and efficiently.  For complicated matters, this is the best process, in my view.

Consult before you commit.  If you are faced with a divorce, you should meet with an attorney to discuss the issues, even if you plan to not hire an attorney to represent you.  It would be a good opportunity to discuss the above options and pick out what works best for you.

How to Encourage Fighting in Litigation

Let me be clear.  I think it is a really bad idea to encourage fighting in litigation.  Still, there are many attorneys who do just that.  Sometimes, it's because that's what the attorneys think their clients want.  Other times, it's because that's how the attorney was trained.  Some attorneys believe that fighting it out in court will lead to the right result.  I don't subscribe to that point of view, but there are many attorneys and some judges who still believe it.

In the interest of full disclosure, I strongly advocate using Collaborative Law, wherever possible.  Where it's not used, the parties should at least use mediation.  I am a mediator, also, so there's some bias there as well.

Part of the reason why I got into mediation and Collaborative Law is that I saw, through years of practice, how people wasted lots of money, got stressed out and angry and damaged family relationships by battling in court.  It is rarely a satisfying experience for anyone, even the "winner".  Usually, both parties lose a great deal.

If you want to avoid the pitfalls of destructive litigation, here are some signs to watch for and avoid.

1.     Encouraging unrealistic expectations.  If a client is angry and has been hurt by the ending of a marriage, getting revenge, getting even or getting a pound of flesh are natural, emotional responses.  A good attorney will suggest getting help, such as counseling, for such an upset client, but will not encourage a client to put a lot of effort into a revenge-type strategy because ultimately, courts usually don't pay attention to that.  If an attorney is encouraging a client to make extreme demands, and I have seen that, it will not benefit the client in the long run.  It will result in substantially higher attorney fees, however.

2.     Encouraging more fighting.  Some attorneys will follow a client's emotional responses and allow and encourage actions that extend the fighting between the parties.  In the end, it usually doesn't improve the settlement or judgment for the client.  It does shrink the assets because attorney's fees keep adding up as the fighting continues.  Even wealthy people reach a point when they don't want to keep paying the attorneys to fight.

3.     Encouraging positional bargaining.  The most common type of bargaining that we instinctively use is "positional"  bargaining.  If you buy a car, you may start off with a low offer because you know the sales person has given you a high, but negotiable price for the vehicle.  Going back and forth, you and the seller work toward a middle trying to find a number you both agree on.

 In contrast, in Collaborative cases, we use "interest-based" negotiations.  In that approach, we identify what's actually important to each party and try to meet the important needs.  Rather than demanding 65% of the assets, we talk about the need to have some interest financial help for a spouse going back to school and the need to have some retirement security.

With interest-based bargaining, there are always more settlement options than with positional bargaining and we focus on the most important needs, rather than just using arbitrary numbers to divide things.

4.     Focusing on winning -- all or nothing.  There are so many issues to be considered in a divorce that it is hard to actually define winning.  There's also the problem that a party who gets an arbitrary percentage of the assets may not have a way to support himself or herself later on or they may end up with assets they really can't use and don't want.  The results may not help them at all.  On the other hand, focusing on meeting the needs of both parties can result in satisfaction for both, if they are willing to compromise and try new approaches.

5.     Focusing on the negative.  While emotions often run high during divorces, they don't have to dominate the process.  Some attorneys encourage and support their client's efforts to prove blame or fault in the breakup.  In almost all the cases where there's fault, there are many other reasons for a court to grant more assets to one party than the other, such as health issues, greater earning capacity, etc.  Arguing those issues will not generate the fight that trying to prove fault in the breakup does.  Focusing on negative issues will run up the attorneys fees for both parties, and that means less to be divided in a settlement or judgment.  When it's all over, it's little comfort that the other party has been blamed when both parties end up with less money and less assets.  You have to wonder if the fight was really worth it.

If you or your attorney engage in any of the above practices, be prepared for the consequences.  I predict that you won't feel as good as you expected when the dust settles.  There's still time to switch tactics.  If you don't want to be fighting, tell your attorney to stop.  If your attorney won't stop, get a second opinion.

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!

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.

"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.
  

Starting with the Small Stuff

There's an old saying that has application to negotiations as well as other life issues. "How do you eat an elephant? One bite at a time." In other words, don't try to take on the whole task all at once. Take it a step at a time.

Seth Godin recently had a post on his blog that got me thinking about negotiations. His point was that people shouldn't start with fighting the impossible battles first. You should start with smaller battles and have some wins before moving up to the more difficult fights.

In many contexts, we are often admonished to "don't sweat the small stuff". That's usually good advice, but in negotiations, it sometimes works out better to start with the small stuff instead of the overriding issue that will eventually have to be resolved.

I have had many clients who insisted on starting on the biggest, most difficult overriding issue in negotiations to test the willingness of the other side to "be reasonable/realistic/fair", etc. These clients didn't really expect to reach agreements, whether the case was in mediation, Collaborative Law or just plain negotiations between the parties or attorneys. They say they don't want to waste time negotiating if they the other side isn't committed to doing the right thing.

Such an approach ignores the need to build a road to reach the goal they want. The road requires a foundation and planning. Roads are usually built in small sections, rather than building the whole road all at once. Negotiations in family law cases also require a foundation and planning, working a section at a time.

In a custody case, the parties may be able to come to agreements on how to share the powers, rights and duties of parents, even where they can't immediately agree on who should have "primary custody". (Part of the underlying problem may be the use of certain labels that make one parent appear to be inferior to the other, but that's a topic for another post.) If the parents will spend some time reaching agreement on the sub issues, such as the parental decision-making powers, how they share time with the kids and sharing involvement with extracurricular activities, for examples, they may not have such a big issue remaining.

When the parties have to negotiate property division terms, there will always be some assets that are pretty easy to divide, and that can make a good starting point. Beginning with some simple decisions can help build momentum that can lead to more progress on the bigger items. Working on furniture and personal property, or the IRAs that are in each party's name, can be a low-conflict point where they can readily agree. As the smaller items are eliminated, sometimes it becomes easier to resolve the other issues because the end is in sight.

Similarly, when dealing with taxes, retirement, debts, investments or many other issues, it makes sense to start with the small, easy-to-agree-to terms. Momentum develops and sometimes a little good will is created when each side sees the other side sacrificing or at least being reasonable.

When you are starting to negotiate a settlement in a family law case, your chances for success will be enhanced if you plan ahead and start work on some smaller issues so that your successes will build momentum to help with the bigger issues.

How to Save Money in a Divorce

Divorce and other family law issues really are tightly connected to emotions. They are obviously very personal and usually involve some hurt feelings. People do go through stages of grief when a relationship ends, and that makes it tough for a while for most people to operate effectively. Some people, however, have anger issues that make it almost impossible for them to function rationally in some situations. The anger may be triggered by financial consequences of their situation, or by perceived slights or the loss of relationships. Others are upset because of new responsibilities they must assume, or by their loss of assets they worked hard for, or maybe just by change itself.

Whatever the cause, it is often difficult to deal with family law issues on a rational basis. Because of anger or other emotional issues, people have trouble dealing with the big picture and often end up focusing on small details. Some people keep score, tracking their wins and losses as if every action were equal to every other action.

Even though many people do not understand this, family law cases are not competitions. It is possible for both parties to win or to lose in a divorce. If you add in children, both parents and the children can all win or lose. It is not necessarily a situation where there must be one winner and one loser. If you operate on a minute level and agonize over how to split the pots and pans, then you can have a "winner" and a "loser" regarding who ends up with the 6-inch sauce pan. On the other hand, if there is a focus on providing two homes with some pots and pans, keeping in mind that they are replaceable, it is possible for both sides to have an adequate set to start.

On an often more emotional issue, paying child support, how the parents approach the issue makes a huge difference with satisfaction in the outcome. If they have a common goal of providing adequate support from both parents to keep the child's standard of living as similar as possible to the pre-divorce standard, the parents can probably make an agreement that's satisfying or acceptable to both sides.

Some people start keeping score and believe that their case is a disaster if some rulings by a judge go against them. Some people will start to see a trend when two or three small issues don't go their way. Rational people know that they will win some and lose some, and that not all issues are as important as others.

The Lessons

1. You can waste a lot of money focusing on the small things. If you insist that your attorney fight over every small thing, it will be expensive. It's easy for an attorney to stay busy preparing letters and pleadings, making phone calls, and negotiating over pots and pans or small sums of money. (It's not fun for the attorneys, but it's easy.) In reality, you are better off financially putting your time and money into achieving your higher level objectives, such as getting an adequate share of the retirement assets, providing funds to pay for your child's college expenses or getting the house sold so each party can purchase their own home, for examples.

2. Fighting over the small stuff unnecessarily increases your stress level. Stress isn't good for you, but many people ignore that and plunge right into battles over minutiae. It's not worth damaging your health over small issues. It's easy to get lost in a jungle of small, but intertwined, issues, and you can easily get stressed out, if you're not careful.

3. If your attorney tells you to focus on the big picture, that's good advice. Your attorney is more objective than you and is in a better position to judge whether you have gotten bogged down in the less important issues. It's easy to get distracted and get off course, so pay attention to your attorney. If you have a vague feeling that things aren't going your way and you aren't "winning" enough, please talk to your attorney about it. Your attorney should be able to help you keep things in perspective.

You know the old saying about not being able to see the forest for the trees. There is a lot of truth to that. It can be costly and stressful if you get off track and don't focus on the big issues. You're a lot better off financially and health-wise if you look at the big picture instead of letting yourself be distracted by smaller issues.

How to Speed up Your Divorce

One of the most common questions clients have for their attorneys is how to speed up their divorce or other court case. This is very understandable since a family law case is usually unpleasant, expensive and slow-moving. It would be nice if there were some quick, easy answers to help speed things up. Unfortunately, there's no easy solution. However, even though there are no guarantees, but here are some things you can do to help the process.

• Be agreeable. That includes trying to be agreeable on issues, plans and solutions. Remember that you can't make the other party be reasonable, and let's not even think about "fair" (fair is in the eyes of the beholder). You should do your best to adapt and compromise. If you can't agree to what the other insists on, you should probably just plan to wait for the court date in the future.

• Be available. Make this case your priority and work your schedule around the court. It may not be convenient, but you may have to be inconvenienced if you want to speed up the process. Part of this is getting your preparation done in a timely manner so that you and your attorney can be ready for discussions or court. If you want your attorney to do all the work, it will cost you more time and money.

• Avoid fights with the other party. In a family law case, each side usually knows what will set off the other party. Honestly, you may feel some spark of vindication or something else if you take advantage of an opportunity to say something or to respond to provocation from the other side, but those exchanges usually escalate and the result is anger which makes it hard to settle the case. No settlement = a slower process. You can choose between fleeting gratification or a faster way to end the case.

• Figure out what motivates the other side and try to accommodate it. If you can come up with an agreement that meets the needs of the other side, you have a much better chance to achieve a quick resolution. Both sides always evaluation a proposal in terms of "what's in it for me?". If there's nothing, there's no agreement and you end up waiting for court.

These suggestions may seem very simple, but it's amazing how often people do just the opposite. If the suggestions don't work, there's still one more thing to do.

• As a last resort, set court dates. As much as I hate to recommend it, sometimes you have to have a deadline to force the other side to act. You can schedule various steps along the way to increase activity: temporary orders hearings, modification hearing, enforcement hearing, etc. Sometimes, you can get agreement finalized just by getting everyone to the courthouse on some small aspect of the case.

Caveat: You should avoid letting the other side know that you are anxious or desperate to get the case concluded. If they find out, it gives them a huge edge in negotiating because they can hold out for more and you will need to make concessions to get an early agreement. Be sure to keep a poker face as you try to speed things up!

Settlements: Curb the Enthusiasm

For most people going through a divorce, the concept of someone being overly generous in settlement just doesn't compute. Most of the time, each side fights to get their fair share of the assets. What often happens in litigated divorces (in contrast to Collaborative divorces) is that each party stakes out opposite positions and usually makes extreme demands for settlement. That usually leads to protracted fighting, unhappiness on both sides and high attorney fees.

Sometimes, though, while one side is anxiously figuring out how to end up with at least enough to meet their minimum needs, the other side starts making concessions and ends up being incredibly generous. There are several possible reasons for the generosity:

• Guilt. The most common reason is that one party feels guilty because of an affair or because of broken promises or because of how the decision to divorce affects the spouse and/or children.

• Desire to be helpful. Although rare, sometimes a party has genuine feelings of concern for the other party and wants to make sure s/he is well taken care of.

• Desire to finish the divorce quickly. One side realizes that if s/he is generous and gives in on most everything, there won't be anything left to fight over and the divorce can be granted right away. Similarly, not making the spouse angry means that the spouse may be more willing to sign off on a final agreement.

• Hope that the parties will reconcile and get back together if a party is "nice" or "fair" to the other one. This occurs where one party is pretty much out the door (emotionally) when they tell their spouse that they want the divorce. The "leavee" sometimes will try to fix things by being generous and to show good faith.

• Guilt. This is such a common reason that it's listed twice.

Sometimes, the strategies work, but sometimes they don't. When things don't work out well, there can be significant problems. Here are some cautions to keep in mind when developing your strategy for settling cases.

1. Be careful that you don't create a hardship on yourself by being overly generous. Be realistic. Don't assume that everything will go smoothly. Leave some "wiggle room" for yourself in case your circumstances change in the future.

2. When you want to be generous to try to win back your spouse, consider the fact that your spouse may have already found a new special person and may be ready to jump into a new and public relationship once the divorce is final. There have been many cases where a spouse took a generous settlement and immediately married someone else.

3. If you are in a hurry to start up a relationship with your own new partner, keep in mind that most rebound relationships don't last. Don't give away the farm just so you can be with your new heartthrob.

4. Just being generous now won't heal fundamental relationship problems between you and your spouse. To try to overcome past problems, you and your spouse need to start with a serious commitment to counseling.

5. If you have children, remember that both parents need to be able to be active parents with homes for the children. Giving all the assets to one parent really handicaps the parenting ability of the other parent. The kids need relationships with both parents.

The result in many cases from being overly generous in settlement is major regrets. How can you avoid that outcome?

• First, approach this, as much as possible, as a business deal and look out for your own interests as well the interests of the other parties.
  

• Second, listen to your attorney and develop options with your attorney to use in settlement discussions. Money spent on creating sound negotiation strategies is money well spent.

• Third, think long term. Come up with a plan that makes sense for the long term. You have to be able to operate in the immediate future, but you should look beyond that and plan ahead.
  

5 Tips -- If You Think it Will be Amicable

Many people contact me and say they want to have an amicable divorce or child support or visitation modification agreement. They understand the benefits that come from avoiding the negativity that often accompanies litigation. They don't want unnecessary work done and want to hold down the financial cost. Truth be told, they would probably prefer to have just one attorney represent both parties, but I always explain that can't be done. (It would be a conflict of interest for the attorney and it would violate our disciplinary rules.)

Generally, the best way to have an amicable legal proceeding is to use Collaborative Law. That process keeps the parties out of court, provides the means for thoughtful and creative decision-making and utilizes the tools necessary to accomplish the objectives of the parties. Each party would have his/her own attorney (trained in Collaborative Law), but the attorneys are focused on reaching an agreement that meets the needs of both parties. The attorneys are not concerned with following all the traditional steps of discovery, pretrial motions and hearings, depositions, etc. that are expensive and often are used to just wear down one of the parties. The Collaborative process involves gathering information informally, but using experts to help evaluate it, and then going through a brainstorming process that is effective in developing options and allowing the parties to come to agreements on their best outcomes.

Unfortunately, Collaborative Law isn't always an option. The most common reason, for now, is that one of the attorneys is not trained in Collaborative Law. Sometimes, one of the parties isn't convinced that Collaborative is the way to go. Whatever the reason, the parties in a family law matter sometimes want an amicable process, but don't utilize Collaborative Law. For that situation, I have the following five tips to help them work together peacefully and effectively.

1. Be prepared by gathering needed information. If this is a divorce, make copies of the essential financial records. I don't suggest that you grab and hold all the financial records. That would be taken as a sign of an uncooperative attitude, even if you really intended to share the information. In non-divorce cases, there will be other information needed, such as income and expense records, school records, health records, etc. It will save time later if you gather up the needed information early on.

2. Choose your attorney carefully. You should probably explain what you want to do and make sure your lawyer is comfortable with that approach. Some lawyers insist on following the same game plan for every case, even if you don't want to take certain steps. If you don't feel like the attorney will do what you want done, then talk to other attorneys. There are plenty of good attorneys and you should only hire one who fits your needs.

3. Expect difficulties. Remember that even if both parties say they want an amicable case, there will still be disagreements. There can be amicable disagreements that can be resolved when there are attorneys (and maybe other professionals) who are skilled negotiators. What you want to avoid is working with someone whose answer to conflict is, "If they won't do what we want, we'll just take it to court and let the judge decide." That's not amicable and that's probably not what either party is looking for. There are plenty of ways of resolving difficult questions without going to court, if your attorney is willing to work on it.

4. Be willing to accept helpful suggestions from your attorney. I have had people come in and tell me that they have everything worked out and they just want me to prepare a document for them. I can do that, but I feel compelled to point out problems and potential issues whenever I spot them. Attorneys will make suggestions for slight wording changes that can clarify an order and help avoid confusion and conflict later. Attorneys can sometimes point out potential tax or financial issues and help you save money and avoid problems. Attorneys often know of ways to do things to more easily accomplish what you want done. You should listen to your attorney and be open to considering implementing his/her suggestions.

5. Don't let the attorneys pressure you into using the standard ways of doing things unless you completely agree. This is the corollary to point #4. You need to listen to the attorneys, but sometimes you should disagree. Doing something just because it's the standard way of doing something is not good enough. The attorney should be able to explain better reasons or benefits for any proposed changes.

If you follow these five tips, you should be able to work out solutions amicably in family law matters. Keep in mind the possibility of using Collaborative Law to get the best results.

Why Running To Court And Refusing Divorce Mediation Is A Bad Idea

C. Sean Stephens had an excellent post this week in his Collaborative Divorce Northwest Blog about how the strategy of rushing into court to get a ruling on issues such as custody, possession schedules, support, etc. may be ill-advised. Not only is this blog one of the few dealing primarily with Collaborative Law issues, but it is always interesting and well written. This post gives the perfect example of how an attorney can misread a case, with bad results for their client, when a settlement process (here, mediation) before the hearing could have provided for an acceptable arrangement for both parties. Here's what he had to say:

"Sometimes negative examples drive home the benefits of collaborative practice the most. At Stephens Margolin P.C. we help clients with both traditional litigation cases and collaborative cases. As an Oregon lawyer practicing only family law, I frequently borrow from my collaborative law skills when working on traditional cases. The traditional side of our practice frequently reminds me of the benefits of collaborative law and the flaws in traditional practice. In our traditional cases, we usually attempt a four way style meeting and mediation prior to entering a courtroom.

"I recently made an appearance in a county which allows for hearings on temporary custody and parenting time before the parties mediate. The opposing attorney had filed for temporary custody without asking for mediation. I asked the other lawyer to mediate to see what we could work out prior to using the court’s time, but they refused. I would have been happy to have a four way meeting in our conference room and talk about some creative solutions, but they refused. Rather than mediate or negotiate, a hearing was held at the other lawyer’s insistence. The result was substantially worse for the moving party than they expected. Rather than a cooperative solution being reached voluntarily, the court imposed a decision on the parties that was harmful to the moving party.

"Refusing mediation or a face to face meeting was an enormous strategic mistake for the other lawyer. A more collaborative approach would have left the other lawyer with a happier client vs. a miserable client, and a better outcome."

Here in Tarrant County, we rarely do mediation before a temporary hearing, although it is done in some cases. (We tend to rely on mediation more for final orders.) There certainly can be a benefit to trying mediation before going to court any time. Even without mediation, it's usually a good idea to make every effort to come to an agreement before you go to court.

Sometimes, however, a party or attorney will come to believe that the facts of the case are all on their side and that they shouldn't waste time negotiating. I consider that sort of an old fashioned attitude. It's great to be confident, but you really lose control of the case when you turn it over to a judge to make a decision. It's always a gamble. Sometimes it pays off, but sometimes it doesn't. With high expectations of a favorable result, it can be devastating to a party if the judge picks up on something unexpectedly and rules the "wrong way"!

Sean is a Collaborative lawyer and like many Collaborative lawyers in Texas, he tends to use a Collaborative approach even in non-Collaborative cases. Usually, that is an effective approach. Parties should never approach a court hearing overconfident, because they are likely to be disappointed. A lot of heartache and anger can be avoided if the parties and attorneys will make a genuine effort to settle before they take a chance in court.

7 Ways to Wreck Your Kids' Holidays

Even with the bad economy, there's plenty to celebrate and enjoy this time of the year. But sometimes people are just miserable because of holiday stress and family issues. If you have children, this can be a great time of the year. If you have children and are divorced, this might still be a great time or it can be really difficult.

While you can (if you take responsibility and try) control your own feelings and attitudes, many people don't do it and let themselves get swept up in various holiday dramas. We can't control what an ex-spouse feels, says or does, and that sometimes leads to problems at this time of the year. On top of that, there's a natural feeling of disappointment when you can't be with your kids at certain times during the holidays.

Parents have a variety of attitudes about sharing or not sharing their kids, particularly around holidays. Their attitudes range from very considerate to insensitive to indifferent to the concerns of others, and even to being antagonistic toward others. Some people seem to thrive on conflict. Other people want to avoid conflict. If you're one of those who wants to avoid wrecking the holiday season, here are some quick tips on what you should avoid so you don't ruin it for yourself, your kids and other family members and friends.

What Not to Do:

• Make last-minute changes in your plans. You can create more havoc and hard feelings if you try to change the arrangements after everyone else has their plans made and travel schedule booked. Ignoring the other parent's plans will certainly create a great opportunity for conflicting plans. Trying to be cooperative well in advance of the holidays is the best way to deal with planning.
  

• Be inflexible if the other parent requests a change in the schedule. Things do come up that require new plans. Some parents insist on following the court's order without variation, when the other parent is asking for a favor. Such parents later inevitably have situations arise later that necessitate a change in the schedule. If they haven't been kind to their ex-spouse, they may not be able to convince that ex-spouse when the shoe's on the other foot.
  

• Be inflexible and demanding if you request a change in plans. If you are working under a court-ordered schedule, you can change it by agreement or by going to court and convincing a judge. Which do you think is quicker and cheaper? If you think that you can always have your way on visitation issues, you will quickly learn otherwise.
  

• Argue in front of the kids about the plans. Mature parents understand the need to keep kids out of adult issues. Arguing and negotiating a holiday schedule should not be done in front of the kids.
  

• Short-change the kids, but blame the other parent. If you choose to not let the kids have or do a certain thing, such as attend a family party, don't blame your ex-spouse. If you are convinced that the decision is the right thing, then notify the kids in an age-appropriate way and don't criticize the other parent.
  

• Criticize the other parent and the other side of the family. There are many times when a parent is very tempted to make fun of, or put down, the ex-spouse and his or her family. Some people even claim that such criticism is acceptable because it is "the truth". It's not necessary to investigate the truthfulness of the statements, because that's not the real issue. Even "truth" can be hurtful. The concern is that such critical statements are damaging to the children because they realize that they come half from each parent. They likely will take that criticism personally.
  

• Compete against the former spouse for the love and affection of the kids. Don't try to provide the best gifts, the best parties or best trips. Children have plenty of love to share and there's just no need to wage a battle over the children.

What to do

Some people are interested in avoiding the drama and conflict during the holidays. If you are one of those, here's some things you can do to improve your chances of having a happy holiday season.

• Keep a good relationship all throughout the year with your ex-spouse. You may have to hold your tongue occasionally, but the kids will respect you for it and you will have a better chance of getting any needed schedule adjustments or favors that you request.
  

• Be flexible and be willing to compromise. There are two sides to everything. Keep in mind that you can accomplish more through cooperation than through battle. And your kids will appreciate a reasonable and realistic relationship between their parents.
  

• Demonstrate mature behavior for kids. This will help your children learn to deal with adversity and it will help earn their respect.
  

• Listen and think before you speak out. Don't just blurt out an emotional response in discussions with your ex-spouse. Take a deep breath, listen to what your ex is saying and then think through your response before you answer. It will help avoid a lot of hurt feelings.

Happy Holidays!

If You Want to Settle Right Away...

In about half my cases, my client is anxious to get the divorce over with as soon as possible. That may be true because of a new significant other, a desire for a fresh start, being tired of his/her spouse, or countless other reasons. Sometimes, a party to a divorce becomes so anxious to finish the divorce that they will concede almost everything. Even with that attitude, sometimes it's hard to move quickly to a conclusion. Many times, though, a party wants the divorce to be completed right away, but remains unrealistic about how to reach an agreement.

A recent post in the Alaska Divorce Blog discussed this situation and recounted some advice from a judge at a settlement conference. That advice is worth considering, so I am reproducing most of that post:

"• In order to reach a settlement in any type of dispute, each party must be willing to make concessions. To make concession means each party must be willing to give up something in order to attain something.

"• It is unreasonable to expect a party to settle for a property division, which represents their worst outcome at trial. It is unreasonable for a party to receive what represents their best outcome at trial.

"• If a case is not settled, then each party gives up all control over the outcome to the judge (a third party) who does not know either party and may view what is important in the case in way, which neither party anticipates.

"• If a case is not settled, then each party gives up the opportunity to get divorce immediately and faces what could be months of delay until the trial date and many more months until the judge finally has time to make a decision.

"The point the judge was trying to make is that to settle a case both sides have to be willing to give up something in exchange for getting something. In addition, even though the parties in a divorce case are dividing one 'pie', frequently, there are other issues involved than how much of the pie each of them will receive in the property division."

Lawyers try to get the best deal they can for their clients, but the clients must seriously prepare for negotiations by analyzing their own bargaining positions and the motivations of their spouse. It really helps if both parties can take their emotions out of the discussions and approach the sessions as a business deal. They have to be willing to concede some issues to the other side. There needs to be a spirit of give and take. Both parties ideally will come out feeling they each won on at least some points. As the judge indicated, a settlement is not likely where a party ends up with the worst possible outcome they might have experienced if they had gone to court.

Remember, both parties will be thinking, "What's in it for me?" Successful negotiators have a good answer for that question.

What if the Other Parent is Irresponsible?

I recently saw a report in the American Bar Journal online about a Georgia court case where the issue was whether a father could allow his children to be around his gay and lesbian friends. Apparently, the divorce trial court had issued a ruling preventing the father from letting gay and lesbian friends be around his kids. Apparently, there was no evidence introduced in court that the friends had acted inappropriately in front of the children.

I am not aware of a similar case arising in Texas, but I would assume that the Texas courts would probably reach a similar result. Regardless of whether the issue was about different sexual orientation, race, age, religion or some other factor, it should normally come down to whether there is evidence that something improper has occurred. If there is just a potential for problems, it is not likely that a judge would impose restrictions about who can be around children. If something happened, but no one was injured by some event or activity, there's probably not sufficient evidence to support restrictions.

It can be very frustrating when the other parent seems to be irresponsible or potentially endangering children, but that is not sufficient to support restrictions on the other parent. As bad as it sounds, the courts almost require someone to be hurt before they will intervene. If you have a situation that creates concerns about your children's health or safety, you should discuss them with your attorney. You may not be able to directly impose restrictions at that point, no matter how concerned you are or how reasonable and logical your fears are, but there may be some things you can do to help. Here are some ideas:

1. Discuss the situation with your ex. Don't overlook the obvious, direct solution. But, since you may not have any real leverage, you need to work on being diplomatic and conciliatory, no matter how hard that may be for you. It is certainly cheaper, faster and more effective if you can do something by agreement. There is also less chance of drawing the children into the middle of the dispute. Of course, you will probably be dealing with an emotional issue, so that will make it harder to be "nice". You can get some ideas from your attorney or a counselor to help you plan your approaches for the discussion.

2. Request that you and your ex meet with a counselor to discuss the issues. Hopefully, a few sessions will make it possible to come to an agreement in a safe atmosphere.

3. Here, in Tarrant County, Texas, you can contact Family Court Services at the courthouse and set up a meeting with an Access Facilitator. A Facilitator is a specially trained social worker who helps the parties meet and work out differences in how to raise children and share time with their children. Good News -- they are not only qualified, experienced social workers, but they are FREE!

4. Go to a mediator. This can be done with or without attorneys. You and your ex can split the mediator's fee. If one side uses an attorney, the other party should also bring an attorney to equalize the negotiations. Mediators have a very high success rate, so they are an excellent option.

5. Hire an attorney and go to court. This is the most expensive choice, but could be necessary if your ex is uncooperative.

6. Try using Collaborative Law. Both sides would have to agree to use the process, if it is to be used. Your ex might agree to it to keep the matter private, to get expert help or to be able to deal with the issue on his/her own schedule, instead of a court's schedule. The main point to keep in mind is that both parties would need to utilize attorneys trained in Collaborative Law, so you should ask about that when you are hiring an attorney. Using the process may minimize the damage to the relationships between the parties, which is important for the children.

There are obviously many different ways to approach an issue about the children. What you should not do is just get angry, start accusing your ex of misbehavior and being making demands. You will almost never be in position to solely determine the outcome, and such an approach will almost guarantee an expensive, ugly and protracted battle. Why do that when you have other effective options?

(I want to give credit and thanks to Nancy Van Tine of the Massachusetts Divorce Law Monitor blog for referencing the ABA story. She also has an excellent blog that is worth regular viewing.)

Fuzzy Logic

James Gross has another succinct comment in his Maryland Divorce Legal Crier blog that deals with a common misperception of people going through a divorce or of the "advisers" to people going through a divorce. Many people have trouble with the fact that there usually are no clear, definitive answers to most of the questions they have during a divorce.

"Lots of my clients are computer consultants, engineers, scientists, economists, investment bankers or accountants. They ask me questions about their cases and they want clear answers. Before I became a lawyer, I was a chemical engineer, so I know something about how they think.In math class there was usually one right answer and everything else was wrong. They are looking for the one right answer. I remember staying up all night at college with my study group working through the equations to get to that one right answer.

"After math, chemistry and physics classes, law school was a shock to me. I still recall the first day of Contracts when Professor Joe Covington asked me stand up and explain to the class what 'justice' means. I am afraid I did not do a very noteworthy job of it.

"I excelled in classes where the rules were hard and fast, like Civil Procedure, for example. But I did not fair as well in those classes where the concepts were harder to get a handle on, like Torts. I can empathize with the puzzled look on the faces of my 'math and science' clients when I explain divorce law to them. It is a human system and humans are full of flaws. There are no right answers – only probabilities.

"They are uncomfortable with these fuzzy answers. But I sometimes remind them that, even in their world, they deal with unknowns, such as the Heisenberg uncertainty principle, dark matter, string theory and Shroedinger’s cat."

Like James Gross, I often remind clients that they cannot use logic to figure things out in divorces or family law matters. Even when there are "rules", there are often exceptions and ultimately, human beings make judgment calls. Emotions can easily overrule logic when a party to a divorce is making decisions. It's best not to rely on someone else being logical in a divorce context. If you need to persuade someone on a point, you will be more effective if you analyze the other person's motivations and try to appeal to them. Forget about logic!

Acting Your Age -- Bad Tricks That Will Lead to Conflict

Sometimes, it's easier to act like a child than it is to accept adult responsibilities. Sometimes it's more fun to act like a child. Usually, it doesn't help resolve your family law issues. Sometimes we subconsciously continue to act like little kids because it's the way we dealt with conflict in the past. The methods are not always effective, especially when measured against the goal of peacefully resolving marital problems, but they require little or no thinking or planning and they will almost always lead to a reaction.

Here are some things that you should seriously avoid. These are DON'Ts. They make a difficult, stressful situation worse and they may prevent you from meeting your needs. Think back to when you were a kid. Which of these techniques did you use to annoy your sister or brother? How do you think your spouse feels when you do these things to him or her?

1. Hiding toys from someone. One kid hiding toys from a brother or sister is not at all unusual. It may be payback for something else or it could be from jealousy. Things are often hidden and held hostage to encourage some other action by a party in order to get the item back. That behavior happens all the time in divorces.

2. Getting the last word in an argument. Very common with children, especially as pre-teens and teens. Some kids develop that as a habit and they continue to practice it in marriages, which can lead to bad problems. It gets worse in a divorce.

3. Instigate a conflict, then claim to be the victim. We all have seen this happen. A younger child hits an older one who retaliates. The younger one then starts crying and an adult ends up disciplining the older one for picking on the younger one. That technique also works in divorces and can be very irritating to the initial victim who is punished.

4. Insist on taking away something your sibling wants. Sometimes, it doesn't matter what the kids are fighting over. They both claim they want the same thing and it becomes a contest of wills. Ever see that with married or divorcing couples? I have, plenty of times.

5. "I'm hungry/bored." Young children are naturally focused on themselves, their comfort and their needs. As they get older, they start being bored. Adults do the same things as they withdraw from relationships, or avoid a close relationship with a spouse. Being self-absorbed may feel somewhat comfortable, but it makes it hard for an adult to really understand their spouse or other family members. Lacking insight into others or empathy for their feelings makes it hard for adults to maintain good relationships.

6. "You're mean." Young children not only blame others for their problems, but they will make a broad assertion about how bad the other child is. Many adults continue to do that throughout their lives.

7. "That's not fair. " This is a common complaint among children. As children mature, their arguments may grow more sophisticated, but they still come back to the subjective standard of fairness. Obviously, what is clearly fair from the perspective of one person may seem very unfair to another person looking at the same situation, but from a different perspective. Many adults going through a divorce become very frustrated because the process and the results don't seem fair to them. Actually, what often happens is that the situation seems unfair to both parties at the same time, because fair is subjective.

How many of these sound familiar? Most people use most or all of the techniques as kids and some continue the tricks as adults. The results are usually unsatisfactory for adults. Situations are more complex and often more is at stake.

What to do? Here are some ideas.

• At the outset, spend time to think about your goals so that you decide what's important to you. Don't waste time on irrelevant or insignificant things.
• Think before you act or speak. How will your words or actions affect your spouse and how will s/he react? Try to anticipate the consequences.
• Get counseling to help you through the difficult emotional times.
• Talk to your attorney and follow the attorney's advice, even if it's not what you were hoping to hear.
• Try to consider the issues like a business transaction.
• Put yourself in your spouse's position and try to understand how s/he feels.
• Think long term. Consider the future consequences of a course of action. Don't base your decision solely on what is expected to happen immediately. Look at the long term effects of different actions.

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.

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.

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.