Tuesday, July 28, 2009

What if the Other Parent is Irresponsible?

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

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

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

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

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

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

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

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

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

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

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

Thursday, July 23, 2009

Why Does it Take So Long?

For at least half of the parties, and often for both, one of the biggest annoyances of the divorce experience is how long it takes. Going through the process, the parties often become very frustrated. Divorces are rarely smooth, completely agreeable transactions. In virtually every case, even when both parties want the divorce and both parties are mature, respectful and cooperative, there will be stages when progress seems non-existent. Why, you may ask, is that the case? There are many reasons for delay, not even including the common supposition that an attorney is neglecting the case. While that sometimes occurs, delay is more often the result of one of the following factors:

1. Local rules. In Tarrant County (and most other counties in Texas and elsewhere), divorce and family law attorneys must follow local court rules in court cases. The rules may require certain steps to be followed and certain amounts of time for notice. They may permit cases to be postponed if short notice has been provided. There are delays for notice that are built in to the process so that everyone can have an adequate amount of time to prepare. For example, it is very common in Tarrant County for a first setting temporary hearing to be postponed if the Respondent has not had time to hire an attorney or if Respondent's attorney did not have time to prepare for court. Rules of evidence that affect whether certain information can be introduced into court sometimes provide for set periods of delay for notice to the other party to give them an opportunity to object to the evidence.

2. There is often a scheduling order which must be followed. Fairly early in a case's journey in the court system, it will likely be the subject of a scheduling order under the direction of the court. It will set up deadlines for all the actions needed to get the case ready for trial. Even though few cases ever go to trial, most cases proceed under a scheduling order. The parties generally schedule their actions according to the scheduling order and that may appear to slow down the case, from the perspective of the litigants. From the attorneys' perspective, they stay right on schedule and they do not consider themselves slow or behind schedule when they are following the scheduling order.

3. A difficult other side. This can be a serious problem that affects timing. If the other side chooses to be slow, that is hard to overcome. If the other side chooses to do as many things as possible, to "punish" or wear down the other side, they can often get away with it. I have seen an attorney create delays by fighting over everything while complaining that the other side is delaying. Simply a lack of cooperation by one side can cause significant delays.

4. Sometimes, a case gets postponed by the court and it's neither side's fault. Court often schedule more than one case at the same time. If one of the cases starts a hearing and takes a long time, that may bump the other cases to a later time. It's also true that a trial or hearing will carry over from a previous day and cause a chain reaction of delays with subsequent cases.

5. Some delays come when the parties are waiting for a ruling after a court hearing. Many courts routinely take several hours or days to issue decisions. A few courts may sit on a decision for months. It's frustrating, but there's not much that can be done to get the court to move faster. An attorney doesn't want to push too much for fear of getting the judge mad and then having the judge take out the anger on the client.

6. Occasionally, there may be scheduling conflicts with one or both of the attorneys in the case. Attorneys usually try to avoid such situations, but sometimes they occur.

What can be done? The best thing to do is to talk with your attorney. Make sure the attorney knows if there are any special circumstance that require a speedy conclusion. If you think there has been too much delay, discuss that with your attorney and find out if s/he agrees with you. Your attorney may be able to give you a valuable perspective that can relieve some of the stress you are feeling. Or the attorney may be able to help you devise a settlement strategy that will end the divorce sooner. The main thing is to act. Don't just sit around and stew about the situation. Divorces are stressful enough without adding unnecessary or unsolvable issues to your burden. Don't keep it in -- let it out to your attorney, before it overwhelms you!

Thursday, July 9, 2009

Why Is There No Free Consultation?

One of the first questions we often hear when a prospective client calls us is, "Do you have a free consultation?" It's a fair question and an important one. Some potential clients assume that they will be paying a fee for their initial visit with an attorney, but others think they should not begin to pay until they have actually hired an attorney. On the other side of the room, some attorneys believe in charging for every conference with a client or potential client, while other attorneys want to encourage people to come see them, so they provide free initial conferences.

Some attorneys choose a middle ground and charge a reduced fee for the initial meeting. Many of them believe charging even a small fee will weed out the non-serious potential clients who are looking for feedback, ideas or affirmation that they are right, without having incurred any cost for the information or support.

For potential clients who have trouble understanding why they should be charged for the initial time they visit with an attorney, here are some explanations some attorneys use.
  • For the attorneys who charge by the hour, time is money. They keep their business open by charging for the time they spend working in some fashion on the client's problems. Real information is provided in real time to the client. For the attorney, the service provided is essentially the same type of service they will be providing once they are hired: listen, ask questions, determine needs or goals, gather information, analyze, strategize and create plans.

  • Other professionals routinely charge for their time and services at an initial assessment. This includes doctors, mechanics and electricians (just to name a few). The time and skills of the professionals are being applied to the problems at hand.

  • For the attorneys who practice what is called value pricing, or use flat fees, they focus on the valuable information, forms and other paperwork they may provide the client. They also add value by listening and counseling with the client. Here is an example on the higher end of service and a corresponding higher fee: There is an attorney in Calgary, Canada who has developed an excellent product for the initial conference. He spends as long as the client wants, usually 2 to 3 hours, records the session and provides a copy of the recording, and produces a customized approach to the client's issues. Other attorneys provide a less robust experience, but nevertheless provide excellent value to the client just by doing the same things some attorneys do as they charge by the hour.

  • In addition, when an attorney meets with a prospective client, the attorney becomes immediately disqualified from representing the spouse. That can result in a loss of income for the attorney.

  • Another consideration is that the attorney is unable to work on other clients' business when they are attending an initial meeting with a potential new client. That means less income for the attorney and no progress on the other client's issues. Even if it only delays the work, the delay can become a problem for the client and then the attorney. Most clients prefer not to be put on the back burner. They want their matter resolved NOW!

Although we are often told that other Fort Worth or Tarrant County divorce and family law attorneys provide a free initial consultation, we choose not to do so. If the client prefers a free initial meeting, then we encourage them to visit one of the free ones. There's no hard feelings on our end. For a beneficial attorney-client relationship to exist, there must be good chemistry and at least some shared values. If there is disagreement between attorney and client on the fee issue from the outset, then the relationship is not going to work out. It is best for the client to find an attorney whose approach to the case is as consistent as possible with the client's approach.

In addition, busier attorneys will charge for the consultation. To not charge for the consultation would subject the attorneys to spending a lot of uncompensated time with the new client. Again, that prevents the attorney from being able to do significant work on other cases.

Conclusion: The fact that an attorney chooses to charge for all initial consultations does not mean that a client is "wrong" for wanting a free consultation. The attorney isn't "wrong" either. There are other attorneys who will provide a free initial consult. The solution is to match up the clients who want a free interview with the attorneys who want to provide them. The way to do that is for the potential client to raise the issue when the initial consultation is being set up. Just speak up and discuss the issue up front.

Thursday, July 2, 2009

The Increasing Role of Social Media in Family Law Cases

One of my favorite blogs is the Georgia Family Law Blog by Stephen Worrall. He has just posted a very timely article that is based on a post in the DaniWeb blog. It is about the increasing role of social media in family law cases. In case you aren't exactly sure what "social media" is, it is a term that includes an ever increasing group of web sites and programs that can be joined. It is a way of communicating freely and easily with member of a group who has signed up. Some sites limit access in various ways and others don't. Social media includes such things as My Space, FaceBook, LinkedIn, Plaxo, Twitter, Classmates and others. They can be easily found and accessed on the Internet. Here is Stephen's post:

"It's been known for a while that current and potential future employers look at people's profiles on social networking sites such as FaceBook. And it's also been known that people are using social networking sites to announce the status of their relationship -- or lack of one. Now the two uses are getting together, with divorce attorneys mining social networking sites for evidence supporting their clients.

"'Lawyers, however, love these sites, which can be evidentiary gold mines,' said a recent article in Time. 'Did your husband's new girlfriend Twitter about getting a piece of jewelry? The court might regard that as marital assets being disbursed to a third party. Did your wife tell the court she's incapable of getting a job? Then your lawyer should ask why she's pursuing job interviews through LinkedIn.' One attorney quoted in the article said such research is 'routine.'

"In addition, exes are posting information about their formers -- such as an estranged wife emailing 'friends' of the spouse the additional information that he was married with children, which he had neglected to include in his FaceBook profile. Such messages on a social-networking site can even be part of a harassment campaign that led to the court's issuing a civil order of protection, one attorney said."

There are many different uses for the social media in a family law case. Fort Worth/Tarrant County divorce lawyers may be looking into someone's relationships in various ways through social media. In addition, witnesses can be researched the same way to find out who they associate with and to capture statements and pictures they have published. This is a tool that is really not very difficult or technical to use, which can lead to some very damaging or beneficial information. Everyone should be very careful about what they permit to be written or pictured, especially if there is any litigation threatened or in progress.

Note: As always, think and be cautious about anything you put in writing, including in emails or text messages. All communications are potential evidence in court.