Satisfying Both Parties -- Collaborative Law

An excellent article by Teresa McUsic appeared in the venerable Fort Worth Star-Telegram today discussing Collaborative divorce. In particular, the writer referenced a recently-published book by Scott Clarke, Melinda Eitzen and Vicki James. The book called, Divorce: The Collaborative Way, is available through Amazon and various book stores.

The three authors are from the North Texas area. Scott is a financial planner in Colleyville, Melinda is a Dallas attorney and Vicki is a therapist in Dallas, although they all practice in multiple counties in North Texas. I have worked with Scott and Vicki and I know Melinda, so I can confirm that they are real authorities on Collaborative Law.

Ms. McUsic discussed various aspects of Collaborative Law with the three co-authors and explained how the three professionals work together as a team in Collaborative cases in Texas. Her article is a great brief introduction to Collaborative Law.

If the article tweaks your interest, you should find the book and read it. With explanations of what the paperwork means, how the process works and the roles of each of the professionals, the book gives you an excellent overview of Collaborative Law. It also contains examples that illustrate how the Collaborative process can be beneficial to both parties in ways that standard litigation can't. The authors make it easy and fast to read, and the book is inexpensive. If you are investigating Collaborative Law and thinking of using it, this would be a great resource for you and your spouse.

Disclaimer: The authors are friends, but I have no financial interest in the book.

I Want to Know What My Legal Rights Are

One of the most common requests I get is to tell a potential client what his/her rights are. Unfortunately, I think that focuses attention in the wrong direction.

Instead of trying to find out black and white, clear rules that say "this is all you can get" or "this is what everyone gets", why not focus on what you would like to have? We shouldn't be limiting the outcome to some preconceived standard rules or guidelines. Why not try for more or something different, if that's what you want?

When someone asks what his or her rights are, I usually make two preliminary points:

1. First, there's no checklist of rights. To find out your rights, we need to start by defining the subject somewhat. What kind of rights are you wanting to know about?

• Child support
• Alimony
• Property division
• Allocation of debts
• What happens to retirement benefits
• What about the house I had before marriage
• Grandparent rights
• Changing the name of a child
• Being able or not able to move out of state with the child; and many other rights issues ...

2. The second consideration is that rights aren't clearly defined in Texas. There aren't a lot of absolute rules. A lot of those topics or issues don't have specific "rights" in Texas. There are possibilities, but some facts are needed to provide a context because there are almost always alternate ways to accomplish what you want. For example:

• Property division isn't always 50-50.
• Joint custody doesn't necessarily mean equal time sharing.
• There are some limits on alimony in Texas, but there are many ways to work around them.
• Child support is pretty clearly defined, but sometimes there are some variations.
• Guideline visitation (possession schedules) is pretty standard, but it can be adjusted.

Because of those factors, a better question to ask is: What do you want? It's better to focus on what people want rather than limit their vision to what the law may allow. Of course, there's no guarantee that they will ever get what they want, but it's certain that people won't get what they want if they don't ask for it.

For example, if a wife wants some funds to pay for a career training program or to finish college, she should come up with a way to pay for that out of the assets and possibilities that the parties possess. Her husband might support that effort, possibly because it could provide a better home in the long term for the children, or maybe he feels guilty, or maybe for some other reason. No matter the reason, the wife might end up with funds for training, even thought there's no "right" to such funds.

Another example that sometimes occurs is when a parent wants a different possession schedule for the children. In Texas, there is a basic standard possession schedule that most people consider to be their "rights". If a dad wanted to switch nights every week because of work or other commitments, the parents can easily change the schedule, if both parties agree. But that won't happen unless at least one parent will ask for something other than the standard rights.

So, what can you do? Sometimes, it's a good idea to follow the example of children. If you have been around kids for even a short time, you will recognize their negotiating style.

• First and foremost, they ask for what they want, whether it's food, going somewhere or buying something when they're in a store.
• Second, they are persistent. They keep pounding away and it becomes easier to give in than to fight it.
• Third, as they mature, kids learn more sophisticated arguments and find things that appeal to the adults.

Those techniques are not copyrighted. Even adults can use them. Many people going through a divorce would benefit greatly by focusing on what they want rather than finding out their "rights" and then ignoring what would really help them. It's better to aim high.

Tips for Managing Documents to Save Money on Attorney's Fees

Two perennial topics for most people going through a divorce or dealing with a family law issue are how to best manage the documents that are inevitably required and how to cut down on their attorney's fees. For many reasons, we always seem to deal with a lot of documents in any case, although some cases are naturally worse than others.

The answer for some clients is to "Do It Yourself". This won't work for everyone, but for people who have time, understanding and some organizational ability, they can save time for their attorney and save money for themselves. Here are some ways this can work:

1. Background information -- In most divorces, the parties will need to produce a lot of financial records. Why not start early? When you are getting ready to meet with your prospective attorney, gather and organize whatever financial records you can find. Such things as tax returns, bank statements, retirement account statements, deeds, loan agreements and records, credit card statements, etc. are the types of records that can be important in your case. Instead of tossing them into a handy grocery sack or black plastic trash bag, spend a little time separating the records by source and put them in some appropriate order, such as chronological. You can get bonus points from your attorney if you put tabs or labels on the documents or put them in a notebook or set of folders.

2. Discovery -- This is the single most paper-intensive step in the divorce or litigation process. In most non-Collaborative cases, each side sends the other side long lists of questions and requests for documents. It can take a long time to gather up the paperwork and an even longer time to review and organize it. Your attorney will tell you what is needed and you will have the initial responsibility of gathering and organizing the documents. The more complete and organized the records are, the more you will benefit. You probably have a good idea of what your records are or should be, so it makes sense for you to assume the responsibility to get the information together in an understandable and organized fashion.

3. Messages -- Occasionally, you may have letters that are relevant and important to your case. More often, there will be emails, texts, tweets, wall postings, direct messages or other forms of written communications. These can really be voluminous. The initial problem with these is getting a paper copy or a good electronic copy. Then, the messages need to be organized so that your attorney knows what you consider to be the importance of each message. It's also good to have date and time information on each message.

As you gather information for the purposes discussed above, please keep in mind the following "Don'ts".

• Don't write on the documents. Some people like to write their response or their side of an issue on the document. That can cause problems for your lawyer in authenticating the document and avoiding objections in court (your comments are "hearsay").

• Don't change anything on the document or record. The paper must be a true and correct copy of something. Don't change the content or the appearance of the document. Let your attorney worry about the appearance and whether the information is helpful or not.

• Don't give partial documents. Most of the time, your attorney will need the complete document to make it admissible in court.

Bonus Tip: You may be able to save money and time by making extra copies before you deliver documents to your attorney. However, you may waste some money if you copy everything before your attorney has confirmed that the paperwork is useful. It's best to coordinate copying plans with your attorney's staff before you get started.

Did You Notify the State Case Registry?

An often-overlooked part of a Texas divorce decree or other order involving children is a brief requirement, usually close to the end of the order, that the parties keep the State Case Registry apprised of their current:

home, mailing and work addresses,
the name of their employer,
home and work phone numbers, and
driver's license number.

All of that information should be sent to the following address:

State Case Registry
Contract Services Section
MC 046S
P.O. Box 12017
Austin, Texas 78711-2017

Plus, the information should also be sent immediately to the other parties in the case and to the Court. You can usually send the Court's information to the Clerk of the Court.

Any time there is a change in any of the listed information, the updated information should be sent to the Registry, the other parties and the Court.

If you have questions about whether to send in changes in the listed information, you can contact your attorney or you can just send the information.

When Can a Child Decide Where to Live?

One of the most frequent searches on the Internet on family law issues is the question: "At what age can the child decide where he/she will live?" As the Oregon Divorce Blog recently stated, that's a trick question. The answer is that the child can decide at age 18. When the child legally becomes an adult, the court no longer has control over the child. Until then, only the judge ultimately decides.

There are, however, several ways to have some influence.

• The child can talk to the parents about the decision. As much as I don't like involving children in these decisions, sometimes a child is mature and has a reasonable basis for a change in living arrangements. What's potentially damaging is for a parent to want a change of custody and then recruit the child to become an advocate. That should be avoided. Sometimes parents try to act like the request originated with the child, but it usually doesn't. Another bad situation is when a child works the parents against each other.

• A Social Study can be done for the court. The social worker can interview the child and evaluate the what the child has to say. The worker ultimately makes a recommendation from all the information gathered from a variety of sources.

• An attorney can be appointed to represent the child in some cases, but the attorney isn't free. The parties have to come up with the funds to pay the attorney, in addition to paying their own attorney.

• Sometimes, a court will appoint a psychologist to interview or work with a child. That gives the child an outlet, but it's not free either.

• In Tarrant County divorce or custody cases, or for visitation issues, the court will often order Access Facilitation. That is a pretty effective process that has the two parents meet with a social worker from the court to discuss and try to resolve custody or visitation issues. There is no cost for that service.

• The child may be permitted to visit with the judge in chambers and discuss the situation without the parents and attorneys being present, but the judge will always make the ultimate decision. Children are sometimes disappointed with the outcome of that process. Most judges are experienced enough to detect when a child has been programmed or when a child is trying to manipulate the situation. There is no slam dunk result when a child actually gets into a one-on-one with the judge. Nevertheless, the judge can gain some valuable insight into the family if s/he visits with a child in chambers.
  

The element in common with all those approaches: it's always the judge who decides, and never the child.

There are certainly situations that arise where there is a serious conflict between parent and child, and sometimes a change of scenery is good for everyone. Parents should do their best to keep their children out of the middle, no matter what the case. Actually, the Collaborative Law process provides good, safe opportunities for parents or child to make changes. I will have a new post soon on that approach. In the meantime, feel free to visit my other blog, Texas Collaborative Law Blog.

Paying Attention to the Internet and Social Media in Divorces

A few days ago, I learned of an old friend from years ago who had recently passed away. After his death, I discovered that he had a Face Book page and it was still up. It got me thinking about how social media sites seem timeless, and I wondered what normally happens after the principal dies. This may seem like a bit of a stretch for a blog about family law issues, but there is probably some overlap between probate, family law and estate planning regarding how social media sites react to death and maybe divorce. Fortunately, I was able to find a answer to my question. For an excellent review of how Face Book, MySpace, various Google accounts and Twitter operate after a person's death, take a look at the recent post by Jacqui Cheng in Law & Disorder.

I have previously written here and here and here about the increasingly prominent role of Internet postings on various social media sites that come up in divorce and other family law cases. These posts generally were cautioning people to be careful about what they write on Internet sites. (They also need to be careful about texting.)

Another possibility that I haven't seen addressed and haven't heard anything about yet is the possibility that an Internet site is a valuable asset which could be included in the property division in a divorce. There are certainly reports about blogs and web sites that become very profitable and generate large incomes. There is value in such a site, but it may be pretty difficult to put a value on it. On the other hand, something that produces thousands of dollars of income a month or year can't be ignored.

In a similar vein, social media can have value that should or could be considered in a property division. A Face Book page might have some commercial value, depending on how it is focused and managed, and a Fan Page on Face Book is specifically available for businesses. Twitter accounts, You Tube and other new media can also have commercial value. The names associated with various social media, blogs or a web site can have commercial value and can be sold, just as a web site can be sold. Licensing agreements are becoming more popular in businesses that rely on the Internet, and the agreements can have value.

People should be aware of the potential issues that will arise in divorce cases where the parties have active on-line businesses and use the social media to promote them. If you or your spouse have such a business, be sure to let your attorney know. If anyone has had a divorce where ownership or value of an Internet business was an issue, please let us know about it and how it was resolved. Just like death, divorce will not necessarily end an on-line business.

The Unhappiness Gap

It seems that James J. Gross, in the Maryland Divorce Legal Crier, has an almost limitless supply of relevant, analytical and often encouraging comments about family relationships. Last week, he published the following suggestions that can be useful for people facing divorce or for people wanting to avoid a divorce.

"A recent study concludes that a happiness gap between spouses is a harbinger of divorce. It goes further to state that the odds of divorce increase if the wife is unhappier than the husband, because women file more divorces than men. Here are my two best tips for managing unhappiness, in marriage or divorce.

"1. Make a Grateful List. It is easy to look at the glass half full. It is human nature to always want more than we have. And your brain will keep pumping out negative thoughts as long as you dwell on what you don’t have instead of what you do have. An antidote for this is to write down all the things in your life that you are grateful for. Read this list out loud every morning.

"2. Keep a Good Things Notebook. Get a small spiral notebook. At the end of each day, write down all the good things that happened to you that day. Someone smiled at you or complimented your outfit. Keep it simple and short. Try to find at least five things a day."

I heard similar suggestions from a life coach in Texas several years ago, but I like trying out these ideas in the context of a marriage. Actually, they are probably not a magic shield that can protect you from divorce if you wait to try them out when there are serious relationship issues. If adopted and used regularly and early on, they can probably provide a lot of preventive benefit.

On the other hand, if you find yourself facing a divorce or deciding to pursue a divorce, following these suggestions should help ease your pain and assist in your emotional transition to single person. While it would obviously be helpful to the "leavee" (the one being left), a focus on the positive could certainly benefit the "leaver" (the one deciding to leave the relationship)as well. If nothing else, the emphasis on the "good" aspects of the situation should help avoid the often depressing situation of sitting around thinking about how bad the situation is.

There's not much work involved in following the suggestions. Please give them a try and then let us know if it helped.

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.

Male Victims of Domestic Abuse

Domestic violence and abuse used to be a topic that was swept under the rug. During the past 20 years, there has been a slow, but steady increase in public awareness and concern about the problem. The issue has been around for a long time, but it hasn't been dealt with seriously until relatively recently.

The victims of violence and abuse in the home are still predominantly women, but there is a significant number of male victims as well. Most of the remedial efforts, such as shelters, to help the victims have been oriented to women. In addition to there being more female victims, women often are more willing than men to come forward to seek help. It is still very hard for women to seek help in a domestic violence situation, but it is usually much harder for men to admit that they are victims and need help (or rescue) for domestic violence.

The dynamics of the abuse suffered by men and women is similar. One or more of the following behaviors (among others) will usually be occurring:

• The victim is often physically assaulted by the abuser. There are often frequent threats about what the abuser will do to the victim if the victim doesn't do as the abuser wishes. Bullying and intimidation are common tools used by the abuser as well.

• The abuser often controls the finances, leaving the victim with no significant cash and no knowledge of the finances.

• The abuser frequently steals, hides or damages the property owned by, or wanted by, the victim, or threatens to do so. It becomes a way to control the other party and to show the power of the abuser.

• There is often a threat by the abuser to call the police on the victim, and that threat is sometimes carried out. Even worse, the victim is sometimes arrested and charged with domestic violence, which puts the victim in a deeper hole. Police look for visible blood, cuts and bruises and will usually arrest someone if they find such evidence.
  

• Many times, the abuser is able to convince the victim that she or he has not choice but to submit to the control of the abuser.

So, what can you do if you or a loved one is caught in such a situation? Here are some suggestions.

1. Think and plan before acting, unless there is an immediate threat to your safety. (In case of an immediate threat, get away fast any way you can.) Since an abuser usually does have a lot of control over a victim's life, he or she must think first, and then act. The victim should develop a plan to escape and to start over in life. Normally, such planning takes some time and help, so ...

2. Find an ally. Get a friend or family member and confide in him or her. Even though your abusive spouse will probably tell you the opposite, there are many people who care about you. And many of them may have been suspicious of your situation. There will likely be a number of people who will help, if you reach out.

3. Get professional help. Your ally can help you arrange to meet with an attorney and maybe a counselor. The counselor will help you take back control over your life. The attorney can advise you on the best course of action in the court system.

4. Get away from the abuser. Work out a plan and then move out. Move quickly, once you start.

5. Don't get "buyer's remorse" over your decision to leave. It can be tough to move and doubts are inevitable, but keep in mind the big picture. Your health and safety, and maybe the kids' health and safety, are the most important and immediate concerns. Remember, your spouse won't change. Abusers are often incredibly skilled as manipulators, and they know what buttons to push. Don't feel sorry for the abuser. If you start to second-guess your decisions, talk to your ally and your professional helpers. Don't break down and go back. Your life may depend on it.

Men and women who are victims of domestic violence and abuse should not be embarrassed to seek help from friends and professionals. Victims need to act prudently, but they cannot afford to stay long in an abusive relationship. Please contact a professional to learn more about your options.

A Divorce Fair -- Good or Bad Idea?

A recent post in the Ontario Family Law Blog discussed how there had recently been a "Divorce Fair" in Halifax, Nova Scotia, Canada. It was like a lot of trade shows with a variety of exhibitors and presentations, but they all related to divorce.

It sounded like an interesting idea that potentially could help people considering or facing divorce or possibly recovering from a divorce. I wonder how such a Fair would be received around here. If we had a Divorce Fair in Tarrant County, we could include such things as:

• Information on alternatives, such as Collaborative Law and mediation.
• Information about how traditional litigation works.
• Sources of information so people can search for information they are interested in.
• Tips for how to find and choose an attorney.
• How to benefit from using a financial professional in a divorce.
• How to benefit from working with a counselor.
• Approaches for preparing parenting plans.
• What Tarrant County courts expect from parties to a divorce.
• What programs Tarrant County provides to assist divorcing parties.

I suspect that many people would be reluctant to attend a Divorce Fair. It's just not as enjoyable as a bridal fair or even a boat show. Some people wouldn't want others to know that they were thinking about a divorce, so they wouldn't want to appear in public at a Divorce Fair.

But, I'm curious:

• What do you think about the idea of having such a fair?
• Do you think very many people would attend?
• Would you be interested in attending?

Anonymous answers are fine, but I would like to know how this would be received. Please share your opinions.