New Tarrant County Family Courts' Rule on Electronic Devices

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

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

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

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

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

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

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

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

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.
  

What Should I Expect as I Start a Divorce?

There are some fairly standardized process steps that can be expected in a contested Tarrant County, Texas divorce case. The steps vary, depending upon whether you are in the litigation process or you are using Collaborative Law. Keep in mind that each case is a little different from all others. It is not unusual for cases to veer off course and attorneys will sometimes try different tactics in different cases. In general, here are some common steps that follow the initial attorney-client meeting.

Litigation Process

1. The attorney will prepare and file a petition for divorce. Sometimes, there's a restraining order with the petition. The petition (and TRO, if there is one) must be served on the other spouse unless a waiver of service is signed and returned by the spouse, or the spouse simply files an answer -- which happens sometimes when there is some degree of communication and cooperation between the parties at the outset.

2. A temporary hearing may be scheduled. When the divorce is filed, it is very common for the attorney to get an order setting a temporary hearing to settle basic issues temporarily -- not a final disposition. The issues often include: use of the residence and vehicles, support, responsibility to pay bills, child support, terms for sharing time with the children, control over some financial matters and possibly other issues. While a "hearing" is scheduled, there's rarely a real hearing in Tarrant County. Most of the time, the attorneys are able to work out agreements, sometimes after a conference with the judge. Some judges will have an informal hearing, but most decisions don't result from a process that remotely resembles what is portrayed on TV.

3. The parties operate under temporary orders. The TO's will last until the divorce is finalized, but they are sometimes modified. That could be done by agreement, but it's more common to go back to court for additional temporary orders. There can also be motions for enforcement of the TO's if one party believes the other has violated the orders. In contentious cases, there are often multiple hearings before there's a final hearing.

4. Discovery takes place. This is the stage of the process where information is requested and provided by both sides. Very broad and comprehensive requests are usually sent out. Depositions can be taken of the parties and other witnesses. Sometimes, there are objections to the requests or complaints about the information furnished or not furnished. There can be multiple hearings on those disputes. The gathering, review and organization of the information is very time consuming in most cases.

5. Experts are appointed or hired sometimes. The experts may be used to value real estate or a business or some other asset. Other experts may do psychological evaluations or custody investigations. Drug testing or paternity testing can also be ordered. Sometimes the court will appoint one neutral expert (with each party paying half the cost), and sometimes each party will hire his or her own competing expert.

6. Negotiations occur. In most cases, the parties negotiate. There is usually some effort for negotiations between attorneys, but most often cases get settled in mediation. Almost every time, a family court judge in Tarrant County will order the parties to go to mediation before they can appear for trial. The reason is that about 90-95% of cases settle in mediation and that frees up court time for more difficult cases.

7. There's a trial, if there's no agreement. The trial will normally be 6 to 9 to 12 months, or more, after the case was originally filed. Another option is to request arbitration, which can be a little expedited, if both parties agree, but it is rarely used.

8. Final orders are prepared after a trial or an agreement is reached. The final orders include a decree of divorce and sometimes an agreement incident to divorce (AID). In addition, there may qualified domestic relations orders (QDROs) if there are retirement benefits to divide. There can be a substantial number of deeds and other documents as well to implement the terms of the decree.

Collaborative Law
Assuming that both parties want to use Collaborative Law and that they each have hired trained Collaborative Law attorneys, here are the usual steps that are followed in Texas Collaborative cases. Note: the parties agree to not go to court for contested hearings and don't do formal discovery.

1. Initial meeting. At the first joint meeting, the attorneys and parties review the participation agreement and sign it. The agreement outlines the commitments of everyone to the process and explains how the process works. It also contains a temporary agreement that is usually signed that maintains the status quo regarding financial matters. Sometimes goals of the parties are reviewed at the first meeting; other times, the goals are discussed at the second meeting.

2. Gathering information. The parties begin immediately to gather information. Various specific financial documents are produced and shared. Normally, the financial professional directs and works with the parties to efficiently identify financial concerns and gather information about them. On children's issues, the child specialist or the mental health professional, whichever is handling those issues, will direct the parties in gathering information. Sometimes, joint neutral experts are hired to value a business or real estate or other assets. It usually takes several meetings to gather and review the information. Much of the preliminary work is done by the parties with the respective professionals, but without the attorneys, until there is a joint meeting to review information.

3. Option development. This step takes place after the information gathering. The parties, with their attorneys and the other professionals, brainstorm to create options that address the goals of each party.

4. Negotiations. After coming up with multiple options, the parties take time to review and evaluate their options. In the discussions of the options, new options are often created by modifying other ideas. As a result, the parties usually are able to come up with creative and beneficial solutions to meet their goals.

5. Final paperwork. Once the parties have reached agreement, the final papers are prepared, just like in litigated divorces. The decree and AID are signed by the parties and attorneys and then the judge. Any additional paperwork is prepared as needed to implement the agreements.

Most Collaborative cases can be resolved in a few months, but the process easily allows a longer time period for especially difficult cases.

Caution: "Your mileage may vary" -- Check with a local attorney for information about the cost and timing for a divorce considering the unique facts of your case. For more information about Collaborative Law, check out my Texas Collaborative Law blog.

Getting Started: What Information is Needed?

Overview: This is a quick summary of useful information that you can bring to a meeting with an attorney.

1. Immediate needs. Think about what you need to get by right now. What are your financial needs? Safety needs? Transportation needs? Travel schedule? Kids' needs? You probably have monthly statements, letters, memos, notices, contracts and other records that relate to your immediate needs.

2. What are your end objectives. Consider what you want to end up with and gather any relevant information about that. For example: school costs, transportation needs, insurance, job training, retirement plans, debts to pay, housing, etc. Think about your long-term needs and wishes.

3. Get what you can. On a practical level, you may not have access to a great deal of information, so just grab and copy what you can. If you do have access to a substantial amount of information, go ahead and start copying it. You will likely need it at some time during the litigation process. Don't wait until later because things tend to disappear.

Essentials to Look For

1. Income, expenses and debts. Gather pay stubs, W-2 forms, tax returns and the annual Social Security statement showing your earnings and projected retirement payments. You need to have a budget or two. Preparing a current budget (with everyone living together) would help and you will need a new budget for after separation.

2. Bank statements. Get as many as you can, for all accounts, for up to the last three years.

3. Credit card statements. Ditto. It's amazing what you can find on credit card records.

4. Kid information. If there are children and there may be disputes on custody and access/visitation, you should gather a variety of records. These include school records (attendance, grades, conduct), medical care, dental records, expenses and scheduling.

5. Web information. Please gather relevant web site information that have access to financial, medical and school records, as well as social media sites such as Facebook, YouTube, Google +, Twitter, My Space and others. We need user names and passwords. That should be for both you and your spouse. If you or your spouse have web sites or blogs, please provide that information as well.

How to Choose an Attorney

When you have decided that you either need to file for divorce, need to defend yourself in litigation or want to know your options, the next step is to consult with an attorney. If you know or have worked with an attorney, it may be easy to contact that attorney and set up a meeting.

On the other hand, if you don't have easy access to a lawyer, you may need help in finding one appropriate for your situation.

Preliminary Considerations

1. What is your objective? Think about what you need to end up with. Do you need cash now? Do you want to stay in the house or get money to buy another house? Do you need retirement assets? Can you handle debts? How will children factor in? Figure out what your needs and goals are so you can discuss these ideas with your attorney. If you have special needs in certain areas, it probably isn't in your best interest to try to just get half of everything. You can be more creative and better meet your needs by thinking about specific needs.

2. How much money do you have available? Frankly, this has a major impact on your course of action. Family law is expensive. Some people will try to handle everything without a lawyer and that sometimes works. For people with children, assets, debts, retirement accounts, houses, investments, professional careers and assets from before the marriage, a lawyer is really necessary. Fortunately, there is a wide range of attorneys available.

As you check around, find out the hourly rate, the amount of retainer and whether credit cards can be used. Some attorneys will use a credit card authorization with monthly payments instead of requiring a large retainer to be maintained with the lawyer. Bottom Line: find an attorney who is affordable for you and your budget. There are good attorneys in all price ranges.

3. Do you want a shark, a negotiator or a reasonable litigator? To help you decide that, you need to answer some other questions. Do you want a friendly divorce, a big battle or a private negotiation? Do you want to take care of your soon-to-be ex, or to be taken care of? Do you want revenge or to inflict pain and get retribution for your spouse's misdeeds?

Keep in mind that if you hire an attorney who will take a scorched earth approach to your spouse, you will pay for it. All the extra threats, demands, hearings, depositions, discovery, pleadings and a trial cost a lot of money. You can inflict a lot of pain on your spouse, but it will severely deplete your assets. You have to decide if the revenge or punishment meted out is worth spending an extra $50,000 or $100,000 or more.

Getting Started

Once you have thought about your course of action, you need to consult with possible attorneys. So, how do you find the right attorney?

1. Get referrals. Talk with attorneys, other professionals and trusted friends and relatives, and ask who they like and trust. But, remember that what worked for someone else may or may not work for you. Follow up with the next two steps.

2. Go online. Research attorneys in your area online. Look at their qualifications and experience. Check out their web site. Read their blog if they have one. You can get a pretty good idea about an attorney by reading what he/she has to say and how it is written.

3. Check for chemistry. Meet with one or more attorneys and see if the chemistry feels right. Some very good attorneys work well with some people, but can never please some others. Go with your gut on this. If you feel comfortable and communicate well with the attorney, that's a good sign. If something doesn't feel right, try someone else.

Final Note: Be honest with your attorney. Don't hide the bad stuff. The other side won't and attorneys hate surprises. Be ready to discusses your weaknesses as well as your strengths.

When Should I File? 10 Signs to Watch For

Everyone facing a divorce will wonder to some extent if it's the right time to file. If any of the following conditions exist, you should seriously consider filing for divorce -- after talking with an attorney. It is best to get the professional opinion of an experienced attorney to review your situation and make sure it is in your best interest to take that step and do it now.

If any of these things are happening, you should probably consider filing right away.

1. Violence. If there has been violence directed against you or your children, you probably need to get out. You may be able to get your spouse kicked out, but you should take whatever steps are necessary for the safety of you and your kids.

2. Abandonment. If your spouse has left, that's a pretty clear signal that the marriage is over. You should file to protect yourself financially and to take care of your kids (if you have any).

3. Hiding of Assets. If you discover, or suspect, that your spouse is hiding assets from you, a consultation with an attorney can help you decide what action to take to prevent the loss of assets.

4. Wasting or Disposing of Assets. If your spouse is spending money irresponsibly or getting rid of assets, you need to put a stop to it. Consult with an attorney about getting a restraining order.

5. Your Gut Feeling. Sometimes you just know that the time is right. You may not be able to put your finger on a specific reason or cause, but you know it's time.

6. Counseling Doesn't Work. You've tried counseling and you just didn't get the issues resolved. Often the party not initiating counseling is resistant and won't put in the effort to make changes. It's usually a good idea to try working with a counselor, but (as you undoubtedly know) you can't make your spouse change unless he or she wants to.

7. Hiding the Kids. If this is going on, you need to act right away. Go see an attorney!

8. Alienating the Kids. This is less obvious, but you may start seeing signs if the kids suddenly start avoiding you or saying hateful things to you. You need to get into court, get the kids into counseling and get some controls over your spouse. It is very difficult to stop and undo such behavior.

9. Running Away. If your spouse has run away with the kids, you need to get into court and get an order to get the kids back. Go see an attorney right away. You don't want to wait and allow your spouse to establish legal residence somewhere else.

10. Spouse is About to File. If you find out your spouse is about to file for divorce, you need to meet with an attorney and decide whether to try to beat your spouse to the courthouse or just prepare for a first court hearing. Either way, you need to consult with an attorney.

Hopefully, this list will help you think about the decision of when to file. The most important part of the decision is talking with an attorney to evaluate the situation. Good luck!

Announcing the "Getting Started" Series of Posts

In the month of January 2012, I will have a series of short posts on getting started on a divorce. The topics will include the following:

1. When should I file?

2. Who should I see? How to choose an attorney.

3. What information will I need?

4. What should I expect?

5. How much will it cost? Hint -- there won't be a specific amount.

6. Should I use litigation or Collaborative Law?

7. How do we tell the kids?

January is one of the busiest times of the year for divorce attorneys. Many people stay together through the holidays and then want to file for divorce right away. These posts should provide some basic information to help you prepare for divorce, but they are only a starting point. Be sure to discuss these topics with your attorney as you get started. Watch for the articles to begin in early January 2012.

When is the Best Time to File for Divorce?

If you are thinking about filing for divorce, one of the obvious questions is about timing. There is no simple, universal answer as to when the best time is to file. Sometimes, couples may think about, and even talk about, divorce for years and then finally decide to take the plunge. Other times, a quick decision is necessary. Here are some considerations to help you decide, if you are approaching that step.

1. When You Need to File. There are several situations that may lead to the conclusion that you "need" to file now.

• Safety: If there has been family violence or a serious threat of family violence, you should act. The threat doesn't have to be spelled out. Sometimes, it becomes obvious that a situation is about to turn violent. Or, you may hear something from someone else that contains a credible threat or signs of danger. You should always be careful to protect your own safety and the health and safety of your children. That may require you to file for divorce.

• Protection of Assets: There may be threats or actual steps to hide or dispose of cash, investments or other assets. In some situations, one spouse will remove all or a significant amount of the cash to "protect" it. Sometimes, access to accounts is changed. If any of these actions have occurred, or have been threatened, you should act to get a court to protect your assets. It's hard to get money back, once it's been spent.

• Preventing Runaways: Unfortunately, kids often become pawns in divorces. A parent may think that he/she will be able to get control or move a divorce to a distant county by running away with the kids. If you file before the runaway, most judges (at least here in Tarrant County) will not allow one parent to move away with the kids without the agreement of the other parent. If a parent has already moved away, you can usually get the kids back to Tarrant County if you file right away.

• Access to the Kids: Sometimes, after separation, a parent will just refuse to let the other parent see or talk to the kids without a court order. The parent in control often views the kids as possessions and worries more about how to control the other parent than about the kids maintaining good relationships with both parents.

2. When You Want to File. This refers to the situation where one or both parties have carefully thought about whether to try to save the marriage and have reached the decision that it would be better to end it. Often this follows counseling for one or both parties. That counseling will often help the parties accept the decision to separate and divorce, and the counselor can help the parties plan their futures. Filing at this stage is usually a little easier, but sometimes the other parent hasn't progressed to the point of acceptance, so it can still be difficult.

3. Calendar Considerations. This may come up if there is not an emergency. If there are holidays approaching, many people prefer to wait until after the holidays to separate and file. That is especially true if there are children. You may also want to consider the kids' activities and schedules so that you don't separate just before a big test, a performance or an important game, for example. In addition, you should talk with an attorney to find out if there are any other dates or events that could come into play. For example, the courts are really clogged from mid-July to mid-August with change of custody cases. It is hard to get much court time during that period. Experienced attorneys know when the courts are traditionally busy and can help you plan ahead.

Probably the best approach is to consult with an attorney early when you start thinking about divorce. You will probably have a lot of questions you want to ask, but don't forget to discuss timing.

Post-Divorce Paperwork and Actions

When you are going through a divorce, you are probably most concerned with the terms of the property division and the arrangements regarding the kids, if you have children. While those issues are truly life-altering, there are some other details that you shouldn't overlook as you start your recovery from the divorce experience. Your attorney may or may not discuss what you need to do to wrap up the paperwork and loose ends.

In case that doesn't happen, or in case you didn't pay real close attention, here is a checklist of steps for you to consider and take. These are not in order of importance or in chronological order. You can decide what you need to do, or your attorney can help you decide which you should do.

1. Update your life insurance, retirement accounts and IRA beneficiaries. That is especially true if your ex was the beneficiary. You can check with your agent on what you need to do. If you don't make the change, your ex could receive a big payoff someday. If minor children could be the beneficiaries, you should talk with an estate planner to figure out how to handle that.

2. You should re-do your will, and write one now, if you didn't already have one. You probably don't want your ex to be the beneficiary there either.

3. If you change your name, such as resuming your maiden name, you will need to take a certified copy of your divorce decree and make the changes on such things as:

• Social Security card
• Driver's license
• Credit cards
• Bank accounts and debit cards
• Insurance policies.

And there could be other accounts in your name, so keep a certified copy handy.

4. Change the car titles. You should get your car in your name and get your ex's vehicles in his/her name and out of yours. In Texas, there is a form that the County Tax Assessor/Collector has for you to fill out when you transfer a car out of your name. It's a good idea to file that so that red light tickets, parking tickets or toll road charges don't come to you after the vehicle is no longer yours, and you don't want to be responsible if someone has an accident in that vehicle after you really don't own it.

5. Close or separate joint bank and credit card accounts. You don't need to remain liable for your ex-spouse's debts or bad financial decisions.

6. If you plan to use COBRA to continue your current insurance policy from your ex-spouse's health insurance plan, be sure to file the paperwork right away. There is a very short window of time to do that. Afterwards, there's no way to get back in. Check with the company as soon as the divorce is final.

7. Exchange personal property and photos with your ex, if that hasn't already been taken care of.

8. Obtain separate auto insurance, if you don't already have it.

9. Change over the accounts and deposits for your home utilities, if that hasn't been done yet.

10. Check with the Post Office to make sure your mail gets delivered to where you live now and that you don't get your spouse's mail.

If you have other suggestions of steps to take, please share them by sending a comment.