Monday, November 26, 2007

What to Expect at the First Court Hearing

A common question that clients ask is, "What's going to happen at the first hearing?" The following are some tips about what to expect.

People using the litigation system to resolve marital and family law disputes will generally face at least one or two days in court. The first setting is stressful and is often one of the most important events in a case. The results of the hearing or negotiations will establish the framework under which the case will proceed. While the orders can be modified later, it is often true that the parties must operate under the original temporary orders until the final orders are signed by the judge. Justifiably, parties want and need to know what to expect in court when their case gets started.

1. The case could be postponed on the first setting. If one party has just received notice and has not had time to hire an attorney, and asks for time to hire an attorney, the courts in Tarrant County will almost automatically grant a continuance and reset the case a week to two weeks later. If there is a temporary restraining order, it is normally continued in place until the reset date. Sometimes other orders are made temporarily, if necessary. Usually, the judge will not order one party or the other to vacate the residence without a hearing, so that issue is usually postponed as well.

2. There are usually extensive negotiations. Experienced attorneys will normally immediately begin talking with the other side to try to reach agreements on as many issues as possible. That is the sign of a smart lawyer looking after the client's best interests, rather than an indication that the lawyer is weak. The parties get better results if they participate in the decision-making, rather than leaving everything up to a judge. Negotiations are also necessary because there is not time for the judge to conduct hearings in every case set each day. Good attorneys are very familiar with what the judges usually do in similar cases, so they know what can realistically be achieved.

3. Plan on being there all morning. Parties are instructed to show up at 8:30 or 9:00 a.m., and courts will start up some time after that -- each court is a little different.

4. The initial hearings in most family law cases in Tarrant County are in the Associate Judge's court. There is an Associate Judge for each District Judge. The District Judges hear most final hearings and leave the temporary hearings to the Associate Judges.

5. Attorneys usually meet with the judge to discuss issues in the case. Sometimes, attorneys can work out all the temporary issues and just present an agreement to the judge. More often, the attorneys resolve many issues, but must meet with the judge to get an advisory ruling or a suggestion on how to deal with something. Meeting with the judge will usually save time for everyone.

6. Hearings are most often informal. To help save time and move cases through the system, temporary hearings (if held) are usually very informal. Each judge has his or her own style, but generally the judge will let the attorneys summarize the situation and then the parties will get to answer questions or make statements. Documents can be introduced into evidence if necessary. Formal hearings can be held, but if they are expected to take a considerable amount of time, they are generally specially set in the near future. Even then, most judges usually won't allow enough time to put on really extensive evidence at a temporary hearing.

7. How to Prepare: It's really helpful for each party to have thought through what his/her underlying goals and needs are, and these should be discussed with the attorney. Many people aren't thinking too far into the future, but it can really be helpful. Attorneys need to know what their clients want to accomplish so they can prepare for court and negotiations. The parties also need to provide basic information to the attorneys about financial issues, such as income and expenses, debts and any problems requiring immediate attention. The parties need to have parenting plans in mind covering how the children should be cared for and shared during the court process and after. Each party's attorney can provide a list of information the court and attorneys will want to see. Gathering information will become a regular part of the litigation process, so everyone should expect it and get used to it.

The above comments give some idea of what to expect at the first court hearing in family law cases in Tarrant County, Texas. Each party in a family law case should consult early and often with their attorney to prepare for court.

Wednesday, November 21, 2007

What if We Both Don't Want to Get a Divorce? (But There are Problems if We Stay Together)

This is another question in my occasional series of questions commonly asked by clients. For a variety of reasons, some people want to stay married but "split the sheets" or take some other actions. Some want to stay officially married because of insurance, inheritance, religious reasons or children or for other purposes. Fortunately, there are several actions couples can take without getting divorced.

1. Some couples find protection and assurance by creating and signing a partition or post-nuptial agreement. That agreement can divide assets and liabilities, provide for support and can insulate the assets of a party from the liabilities of the other party. It can also be a tool for estate planning and may help save taxes.

2. If there are minor children, support and visitation issues can addressed in several ways. A partition agreement can provide for contractual child support. Either party can ask the Attorney General to help collect child support. The parties can sign a voluntary agreement for child support or visitation, or either party can file a petition seeking a court order for child support or visitation.

3. Couples can always work with a counselor to try to improve their relationship. Communication problems are common and can be overcome by hard work and commitment.

4. Couples can just continue to live together and informally start creating separate lives and interests. That is not unusual. It often leads to divorce, but some people are tolerant enough to live that way. If there are significant problems, they won't just go away. They usually get worse over time.

5. Annulment is a very limited option and will be discussed more fully in a later post. It usually is not available because of the limited circumstances under which it is allowed by the Family Code.

Sunday, November 18, 2007

How Can a Father Win Custody?

This is another question in my periodic series of common questions from clients. The short answer to how fathers can win custody is: the same way mothers do. There is often still a perception that women automatically always win custody. That is not true. Mothers still end up with custody more often than fathers, but in contested cases that is not necessarily true. While there are still a few judges who automatically favor mothers, there are many other judges who bend over backwards to be fair to both sides. Juries in Texas don't shy away from awarding custody to the more deserving parent, male or female.

The easiest way for a father to get primary custody of a child is to do so through negotiations. Sometimes both parents will agree that the father is the more appropriate parent for primary custody because he is in better financial shape or has more time available or has a better relationship with the child, or for some other reason. Sometimes the parents work out creative arrangements that fit the schedules of both parents and the child. Collaborative Law is very helpful in setting up customized plans for sharing time with a child.

The question, though, really refers to those cases where the parties can't reach an agreement. For those cases, I offer the following seven tips to win custody. They will work for fathers or mothers.

1. Be the primary caregiver. The parent who has always, or recently, been the primary parent taking care of the child does have an advantage with judges and juries, unless the parenting has not benefited the child. When the child is thriving, the primary caregiver has an advantage.

2. Be involved at school and home. This is more than just being present for a time period. Help with homework. Give encouragement to the child. Play with the child. Talk with your child. Read to or with your child. Have meals together. Volunteer and help at school. Keep up with your child's grades and homework. Get to know the teachers and Principal. Know about and deal with any problems when they first show up. Get to know your child's friends and their parents.

3. Be good with kids. Don't be afraid of kids. Loosen up and have fun with them. Be able to talk with other kids. Participate with kids whenever and wherever you can. It's OK to act like a kid sometimes, but don't go so far that you give up appropriate parental authority. Share interests and activities with your child.

4. Be cooperative with the other parent. Be flexible in sharing time with the parent. Share information about activities and plans. Try to help each other where you child benefits. Some parents lose custody when they unreasonably refuse to cooperate to share time with the kids. Children normally benefit when the parents get along. Avoid negativity, blame and name-calling about the other parent, even when you may think it is justified. Take the adult role and set a good example for your child and the other parent. Remember, you may need a favor some day (or weekend).

5. Speak positively of the other parent and be supportive of them. Making critical comments about the other parent when your child is around is inappropriate, even when you are convinced the remarks are "the truth". Since your child is part you and part the other parent, attacking the other parent can feel like an attack on the child. It is much better to take the high road and refrain from negativity when the child is around. It's the same advice you have probably given your child to help him or her deal with peers.

6. Be knowledgeable about parenting. This takes some effort. We aren't usually born with innate knowledge of how to be a good parent. Some learn this as they grow up. Others may not have spent much time (at least recently) around kids, so they need to learn what to do. They can read, take classes and get help from experienced parents. Good parents are constantly learning more about kids, especially as their kids mature and move into new stages of development.

7. Follow the court orders. It's a serious mistake to violate visitation orders, by either the primary or non-primary custodian. Improperly keeping the kids from the other parent never looks good to the court or a jury. Failure to exercise visitation or possession times allocated to you create doubts about how seriously you want to have primary custody. It's also hard to ask the court to award custody to a parent who regularly does not properly pay child support. If the visitation order or child support amount needs to be changed, try to negotiate or file a motion to change it, but don't just take matters into your own hands. Lack of obedience to an order usually has a negative impact on your child, can result in incarceration of the offender and creates a negative impression of you with the decision-maker in a custody case. It's important to comply with court orders as long as they are in place.

These seven tips are all factors often relied on by judges or juries who are deciding custody questions. They all start and end with being a good parent.

Tuesday, November 13, 2007

Record Divorce Settlement!

Recent news reports indicate that Michael Jordan will be paying his wife $168 million in a divorce settlement. This is apparently a new record settlement for a celebrity divorce. Undoubtedly, Michael still retains substantial assets. Even better (for him), he still has exceptional income potential from endorsements and business opportunities for many more years. While he is giving up a lot, he should be able to recoup that without too much trouble in coming years. The Jordans wisely reached an out-of-court settlement and avoided the avalanche of bad publicity that many divorces generate.

Thanks to the Mississippi Family Law Blog for reporting the story earlier.

Friday, November 9, 2007

Children, Divorce and the Holidays- How to make the best out of a stressful time

Thanks to Stephen Worrall of the Georgia Family Law Blog and Mark A. Wortman of the Missouri Divorce & Family Law Blog, both excellent blogs, for this timely posting. We are getting really close to Thanksgiving and there is a strong possibility of encountering various family problems. Even in intact families, there is often stress about where and when adults and children will visit each other during the holiday season. Avoiding a sense of competiton, and seeking cooperation instead, between various family units is essential. For some other worthy ideas, please continue reading. Hopefully, this will help resolve some family issues at a time when family members should be enjoying each other's company.

The holiday season conjures up many images for all of us. The most universal of these images is one that includes happy excited children. However, for children from divorced or separated families, the holidays can be a nightmare. What other children may experience as a joyful time filled with excitement and good feelings, children whose parents are divorced or separated see quite differently. Often the holiday time marks a period of turmoil and chaos, as the estranged parents are forced to negotiate additional child centered issues. Depending on the degree of hostility between the parents, children of divorce approach the holidays with feelings ranging from mild ambivalence to absolute dread. This article will explore what children of divorce experience at holiday time with a focus on holiday visitation, parents' legal rights and ways that parents can help ease the pain and reduce conflict so the holidays can be enjoyed by all.

First, regardless of financial or marital status, we all experience stress around the holidays. We spend too much, eat too much, party too much and always seem to have too little money, too little sleep, and too little time. It is important to recognize that most people feel inadequate around the holidays.

Second, regardless of how good the relationship is between the divorced or separated parents, children and their parents always experience some sadness around the holidays. After all, the holidays are a time for reminiscing and reassessing our lives. The divorced or separated family is always aware of the pain it has suffered and the holidays magnify this pain. Reminiscing is part of the holiday tradition, as we remember holidays gone by with stories or browsing through the family album. For the divorced or separated family this experience is bittersweet, as they reassess how it "used to be."

Third, we have unrealistic expectations. This result is the "post holiday blues" many of us experience in January. We expect more from ourselves and others than is possible, so we feel let down and disappointed.

Fourth, the ability of the children to adjust not just to the holiday visitation schedule, but to the divorce or separation, in general is directly effected by how well the parents have learned to adjust to their new roles as ex-spouses and co-parents. The above four issues give insight into what parents need to do, regarding their children.

Each holiday exists for a limited number of hours. Because parents are divorced or separated does not mean that the amount of holiday time available, doubles. In reality, it means that each parent now only has half the time with the child that they had before. Recognizing that reality is primary in negotiating visitation time.

The bad news for the children is that they are forced to divide their time between two families. The good news is that they experience two celebrations. From the child's point of view this may sound like a lot of fun and it can be, provided that the parents set realistic expectations and don't try to outdo each other or buy the child. Many non-custodial parents feel that they have to make up for their absence by indulging the child's every whim. This is unhealthy parenting. The Disneyland parent will grow to resent it and your child will test your boundaries and try to take advantage. If possible, discuss with your ex-spouse your child's gift list and divide the list, rather than duplicate it. Competing for your child's love and loyalty only confuses the child. The best gift you can give your children this holiday season is permission to love both parents.

Some families avoid splitting the holidays, agree that the children will spend Christmas Eve with one parent and Christmas day with the other. Many divorce decrees provide that parents alternate major holidays yearly. This gives both parents the opportunity to celebrate with the children and avoids rushing the children to two holiday diners. Some families choose to celebrate Christmas Eve and the other parents Christmas Day. Remember holidays are about families and good feelings not the day the calendar dictates. In reality every day should be a holiday!

Older children are not immune to this stress. Children who live on their own may find it difficult to choose where to go and when. Young adults returning home for the holidays have the additional stress of wanting to spend time with their friends. Recently, a young couple, who were married within the last year saw a therapist to negotiate holidays. Both sets of parents were divorced and remarried. They were caught in the trap of negotiating four sets of parents not to mention grandparents. Trying to please their parents, each other and themselves was putting stress on their marriage. They decided to rotate holidays, rather than try to see everyone on every holiday. Now instead of spending holidays driving all over the state, worrying about where they had to be next, they were able to relax and enjoy their time with all members of their families.

For younger children, the decision of where to go, and when should be decided by the parents. Having to choose to spend time with one parent, over the other is a tremendous burden for the child, which may result in the child feeling guilty. It also gives the child more power than is appropriate. Your child does not decide whether he/she wants to go to school, but he/she may decide what to wear. Age-appropriate responsibilities enhance children's self esteem and confidence. Frequently divorced families fall into the trap of giving the children more power than is appropriate. To avoid this, make sure you have a support system you can turn to for advice and encouragement. One of the most difficult aspects of single parenting is not having another adult in the house to offer support and validation.

Divorcing parents are advised to determine where the children will celebrate, in writing, with the assistance of their divorce lawyers. This will prevent parental arguments and involvement of the children. The scheduling of holiday celebrations can be done creatively to fit each couple's unique situation. Parents can alternate Thanksgiving and Christmas, or Christmas Day and Christmas Eve, or allow the parent not having Christmas, the week between Christmas and New Years. It is important to put the agreement in writing to avoid misunderstandings and reneging on the part of either party.

Holidays are a mixed blessing. If we set realistic expectations, focus on the needs of the children, develop a good support system, and take care of ourselves both emotionally and physically, this time of year can be joyful and fulfilling regardless of our individual family structure. Best wishes for a peaceful and happy holiday season!

SOURCE FOR POST: Missouri Divorce & Family Law Blog and Divorce Help Network

Monday, November 5, 2007

When the 7-Year Itch Comes Early

A recent study has shown that couples are at their greatest risk of divorce shortly before their fifth anniversary, instead of the seven-year mark traditionally assumed, according to a recent story in the Houston Chronicle. The study was conducted using records from the United States, Germany and Scandinavian countries. Interestingly, the statistics seem to indicate that marriages that last at least 10 years have a good chance of continuing without divorce.

Apparently, couples face a lot of stress around the five-year mark as they think about having children (often a topic of disagreement) or as they deal with radically changed relationships as new parents (combining stress and loss of sleep with the need to make major adjustments in their lives). Sometimes less-committed partners decide to bail out before life gets too complicated or expensive, which can be around the five-year mark. It can also be a time when unhappy couples decide they don't like their relationship and they have given it enough time to work out.

Sometimes, divorce may be the only or the best answer. In other cases, divorce may be avoided by couples working with marriage counselors early on as they start thinking things aren't going so well. Couples need to communicate well, actively listen to each other and be willing to change and compromise on issues. Those are things most people don't do well without skillful help. Couples usually need help in developing communication skills so that they can discuss sensitive topics without getting into major arguments. Those skills, which are utilized to negotiate in Collaborative divorces, include carefully choosing one's words, being respectful to the partner, agreeing not to rehash old arguments and avoiding blaming the other party, among other things.

Sometimes couples can avoid divorce by treating their underlying issues rather than just scratching their itch and causing further irritation. Early sincere efforts by both parties will provide the best chance of success for the marriage.