When is the Best Time to File?

The easy answer is the first day of each month, but that would be wrong. There's no automatic "best date" for any type of case. When trying to decide when to file your case, here are some things to consider:

1. What process are you using? If you use Collaborative Law, the timing is a much less significant issue. In a Collaborative case, the parties set their own schedule. In Texas, they can act without court supervision for up to two years. If the case is filed as a litigation case, then other time factors come into play.

2. Is there a significant ending deadline? If the case needs to be resolved by a certain date, then you can work backwards from that to figure out when you must file, but generally, you need to file as soon as possible. For a divorce case, don't forget the 60-day waiting period from the date of filing until the earliest possible date to have the divorce granted.

3. Has someone moved? For a divorce, to be able to file, one of the parties must have lived in Texas for at least 6 months and the county you file in for at least 90 days. If someone has moved to a different county or state, the residency requirements may also affect when you can or should file.

4. Are there statutes of limitations involved? For some types of law suits or issues, there may be a statute of limitations that would prohibit your filing something after a certain date. You should discuss any such issues with your attorney.

5. Are there post-final hearing deadlines? If you are wanting to file an appeal or a motion for new trial, for example, be sure you work with your attorney and promptly comply with all deadlines. There are various requirements for different steps to take after a final ruling has been made.

6. Are there fact-related deadlines? Is school about to start? Are certain bills due now or at a certain later date? Do you want the divorce final before the end of the year for tax purposes? Is there a deadline to accept or reject a promotion or job transfer? All can be compelling reasons to take action right away.

7. Are you prepared to file? Do you have the information, witnesses and fees you need to file now? Is there time to prepare? Make sure you work with your attorney to determine the best timing for filing any family law litigation.

There are obviously a number of questions that need to be considered in deciding when to file. You should have a thorough discussion of all the factors with your attorney. Make sure your attorney is aware of all your concerns and objectives.

Do You Want a Divorced Lawyer or a Divorce Lawyer?

Ben Stevens of South Carolina has just written a thought-provoking post in his South Carolina Family Law blog about the advantages of having a divorce lawyer who has been divorced. I guess it just depends on one's perspective.

Even though I have never been divorced, I can see some merit in some of his points. He does see things a little differently than I may.

However, with nearly 34 years of representing people going through divorce, I have a pretty good idea of what goes on and I do understand a lot about the feelings involved.

I doubt people choose a doctor by asking if the doctor has had whatever disease or condition you need diagnosed and treated. In fact, you probably want a doctor who is healthy and who has a lot of knowledge and experience in the field you need help in.

When you are choosing a divorce or family law attorney, there are many considerations. How well do you and the attorney communicate with each other? Does the attorney listen to you and really hear what you are saying? Do you want an attorney to tell you everything to do, or do you want to be active in planning and carrying out a strategy? Is the attorney's temperament the style you want? Does the attorney have experience in the type of law you need help with? Is the attorney a recognized authority?

I always recommend that clients look around carefully and research prospective attorneys. There's tons of information on the Internet.

I know I'm not right for some people. At the same time, I can be a great fit for other people. It just depends on what they are looking for.

Ducks Marry Ducks

I didn't create the title to this post. It's a phrase I've heard around the courthouse for years, mostly from judges, social workers and therapists, to explain why both parties in a divorce are often afflicted with the same or similar problems. Even though the lawyers and other professionals usually recognize this phenomenon, the ones who don't realize it are the ones most involved. The ducks themselves. Our clients. I am writing this to clue in the ducks so maybe they will have an easier time navigating the family law system.

Family law legal issues usually range from very emotional to extremely emotional. Luckily, clients have attorneys to help them deal with the process. In litigated cases (in contrast to Collaborative Law cases), the parties and their attorneys often spend a lot of time preparing for court, or at least preparing for heavy negotiations. The attorneys always want facts from their clients. Some attorneys focus almost exclusively on the negative, while others try to balance the mud slinging by getting evidence/witnesses about the positive aspects of their client's situation (their hard work, honesty, generosity, willingness to change diapers, etc.).

Maybe it's easier to come up with negative things, maybe it's more emotionally satisfying, or maybe people think that negative attacks are more persuasive than just saying nice things about oneself. Whatever the reason, parties (and attorneys) tend to spend more time developing evidence of negative traits than positive.

And that's where the problem arises. In case after case, I see the same thing. It's "the pot calling the kettle black". Here are some common issues where I see it:

• Having an affair. It's amazing how many times one party gets all worked up because the spouse is having an affair, and it turns out that the one who's upset is also dating someone else or has in the past.
• Drug use. When I hear claims of someone smoking marijuana or using other drugs, it's almost always true that the other spouse is also a druggie. (Although the person usually claims to be a "former" user.)
• Forgery. There are frequent complaints that the other party forged a signature on a check or tax return or some other document. Just about the time that the victim works up a lot of righteous indignation, we discover that the "victim" also has forged the other party's signature on other similar documents.
• Bad housekeeping. I actually had one party go through the house that he and his wife were sharing and take pictures of messes (which he then ignored, although he was unemployed at the time). Once he moved into his own house, he was able to match his wife's messiness, and even surpass it in places. (She went into his house and took pictures, also.)
• No cooking or bad cooking. If there's one of these allegations, they probably eat fast food all the time --neither cooks.
• Running up excessive debt. Most often, each has their favorite money pits and they each run up debt. Usually, the one complaining louder is the one who makes more money.
• Nude pictures or movies. It's either: guess who was also participating when the pictures or movies were made, or the pictures may have been taken illegally.
• Hiding assets. Distrustful spouses often are married to equally untrustworthy spouses.
• Being uncooperative or unwilling to compromise. It really just depends on the issue involved. There are almost always some issues where one party simply will not budge, and the other side complains mightily, even though the positions are often reversed on other issues. Usually, each side has some non-negotiable issues.

The old double standard is clearly alive and well. It's so much more fun to attack and criticize the other side in a family law case. Unfortunately, a lot of time and money can be wasted mounting attacks on issues that make both sides look bad.
What to do about it:

• Come clean with your attorney. Be honest and admit your shortcomings. Don't try to hide or downplay the dirt on you. It won't be the first time your attorney has heard about such things. It's not the attorney's position to judge you. Your lawyer is there to help you develop the best case and to achieve your worthwhile goals. The lawyer can't help you if s/he gets surprised in court.
• Be realistic. Nobody's perfect. Admit to your attorney when you messed up, so the attorney can help you develop a strategy to deal with the bad facts. Everyone has at least a little dirt. Honesty can really help you in court when you admit your weaknesses. Your attorney will help you to figure out the best way to present things.
• Try to come up with positive points about yourself. This is often overlooked. Judges get tired of all the negativity they see and hear. Telling the good things about yourself can make a really strong impression on the judge.
• If the kids are involved, try to objectively look for their best interest. This is something judges are interested in. If you demonstrate your commitment to the children's best interest, it will pay off for you. If you are not sure about what would be best, or if there's some other way to do things, get help from a parenting professional. We use them in Collaborative cases, and there's no reason why you can't consult with one in a litigated case.
• Be open to new options. The court may send you to Access Facilitation or a social worker with the county to help you develop a parenting plan. You will probably go to mediation if you don't settle early on. With any of those options, keep in mind that you are being helped by people who are experienced and can come up with many different models that have worked for others. Consider seriously any suggestions you get.

Remember, many of the issues you think are dynamite will fizzle out for a lot of reasons. One of the most common situations attorneys see is one party complaining about something that they are also guilty of, and that should be avoided. Ducks marry ducks and for many issues, there's virtually no benefit from bringing up issues that apply to both parties. Instead, look for things that will distinguish you in a positive way.

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.
  

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.