Monday, December 20, 2010

Getting a "Quiet" Divorce

There are quiet divorces and then there are the ones you hear too much about -- the celebrities with their binges and affairs caught on film, tape and the Internet, and your friends and relatives who go through the gauntlet fighting against all odds against the most overbearing spouse imaginable. You hear the horror stories all the time, but it doesn't have to be that way.

Collaborative Law is one way to have a quiet, peaceful and civilized divorce or resolution to another family law issue, but sometimes you can have a low-key litigation experience if the parties show maturity and stability to cooperate to end or change a relationship that isn't working. Many people start out with almost everything agreed. They may not need the full menu of legal services employed to work through a difficult and contentious divorce.

If you and your spouse are on fairly good terms and want to work together informally, Collaborative Law may be a good option, but it may not be needed in some less complex or mostly-settled cases. If you are in that situation, you should talk to an attorney about the following:

  • Use minimal pleadings and don't make inflammatory allegations. You don't have to have a temporary restraining order or a temporary hearing. Discuss the situation with your attorney and determine the minimum that is needed.
  • Insist on limiting your court appearances. You may not even need to appear in court to get the final decree signed.
  • You don't necessarily need a deposition taken of your spouse, especially if everything is worked out.
  • Likewise, you don't need formal, written discovery. Attorneys have numerous ways of gathering and sharing information.
  • You can control the timetable, if everything is agreed, although there is still a 60-day waiting period in Texas.
  • You also control the terms. Most judges will approve agreements made by the parties as long as the terms are written in a way that makes them clear and enforceable.

Not every divorce or family law procedure needs to be handled the same as all others. As the party most affected by the process, you have the right to tell your attorney to limit the steps you follow. Have a frank discussion and make sure that you do not just blindly follow an attorney's advice to do everything a "standard" way. Standard isn't always the best.

Friday, December 10, 2010

Dealing with Depression

I'm no therapist, but...

Unfortunately, depression seems to be becoming more common-place during holidays, especially when there's a divorce or other family law procedure pending or recently completed.

The fact that depression isn't discussed much in most divorce and family law cases doesn't mean that it's not a significant factor in many situations. When people think about, or discuss, how people act during a divorce, it's very common for one or both parties to be described as angry. Sometimes more colorful terms, often describing personality disorders, are tossed about. But aggressive actions by a party often mask an underlying depression.

Depression is an under-treated condition that is actually pretty common in divorces. At different times, almost everyone going through a divorce will experience feelings of depression. The good news is that it's not necessarily a permanent condition and there are some things you can do to minimize or avoid depression. recently had an excellent article entitled "10 No Cost Strategies to Fight Depression". The article wasn't about divorce, but I thought the suggestions were excellent (but remember that I'm no therapist...) and they could very easily apply to the divorce context. Here's what they suggested:
  • Don't blame yourself.
  • Talk about it.
  • Get regular exercise.
  • Postpone major decisions.
  • Take care of your health.
  • Maintain a daily routine.
  • Eat a healthy diet.
  • Avoid drugs and alcohol.
  • Try to sleep well.
  • Don't overschedule.
I would add a corollary: If you think you may be depressed, please tell your lawyer so that s/he can either help you find a counselor or can work out a strategy to compensate for the issue.

The suggestions sound pretty simple, but it is sometimes hard to admit that you are depressed and it may be hard to put aside anger so that you can think rationally. If you sense you are experiencing some symptoms of depression, get help. Seeing a real therapist (not me), staying physically active and maintaining good health can get you started on the road to recovery. Depression usually won't go away by itself. If you avoid treating your depression, it can overcome you and cost you a lot in your divorce or other family law matter. When and if you are depressed, you probably aren't functioning very well and others, maybe including a judge, will notice, and that can affect the outcome of your case.

By the way, even if you aren't depressed and even if you aren't involved in a court case, following the 10 suggestions above will still benefit you by allowing you to be happier and healthier.

If you know of any other effective ways to deal with depression, please add a comment below.

Wednesday, December 1, 2010

What You Should Tell Your Attorney

Most divorces and other family law issues don't wrap up in one or two or three months. Unfortunately, the issues involve complicated and changing facts that take time to uncover and understand. Attorneys and clients must work together closely and communicate well, and that usually happens. In a surprising number of cases, however, some highly relevant information is not conveyed to the attorney.

Some Matters That Should Be Disclosed to Your Attorney
  • You are buying or selling a house, or if you are moving.
  • You are having surgery.
  • You lost or will lose your job, or you are starting a new job, or your pay has changed.
  • You are getting counseling, or you stopped or never started counseling that was ordered by the court or expected by your attorney.
  • Your arrest or criminal history.
  • You are dating or have a boyfriend or girlfriend.
  • You have a roommate.
  • There has been a significant financial change.
  • You have been served with legal papers.
  • You are being threatened with litigation.
  • You have had an argument, or made an agreement, with your spouse.
  • You plan to dispose of some of your assets or your spouse's assets.
That is not a complete list. When in doubt, tell your attorney.

Problems The lack of communication can result in problems when the news comes out, which it inevitably does. Some of the results can include:
  • Violations of court orders that could have been avoided. Timely notice to the attorney might have enabled the attorney prevent the action or minimize the impact.
  • The client's attorney being caught unprepared in a hearing when the issue is brought out in front of the judge. It is usually better to volunteer the unflattering information instead of leaving the impression that you are trying to hide something.
  • The other party or other attorney becoming upset because of the unilateral action. That often can be prevented or minimized. When the other party is upset, you can count on less willingness to be reasonable or settle on other issues.
Why don't clients inform their attorneys?

Attorneys sometimes have a hard time understanding why their clients don't tell all. In reality, there are many different reasons why it can occur. A few of them are:
  • Embarrassment. Clients are human, too. They don't want their attorney to think badly of them. They may hope that no one else discover the silly or stupid or malicious thing they did. Unfortunately, word almost always gets out.
  • Avoidance. A client may fear the response or rebuke that is expected when a course of action is proposed. They want to avoid the unpleasant experience, so they just don't talk about it.
  • Not thinking. Some clients just don't think it matters if they do certain things or they forget about some things. It's no big deal to them.
  • Desire to save money. Clients know that it costs them to talk to their attorneys, so they decide to save the up front attorney's fee costs, not thinking that the situation can turn into a bigger problem.
  • Secrecy. They may fear that the attorney will tell. Sometimes, clients know something is wrong, but they want to do it anyway. To protect themselves, at least in the short term, they try to hide the action from their attorney. But, the facts will usually come out anyway.
What's the Solution? Talk to your attorney and let him/her figure out how to best handle difficult or embarrassing facts. Let your attorney advise you on what actions to take or to avoid. It's really pretty simple.

Monday, November 1, 2010

Five Common Sense Rules for Divorce

Daniel Clement writes an excellent blog, the
New York Divorce Report, where he had some good lessons for anyone going through a divorce in a post on October 26, 2010. Because it was so well-written, I have reproduced it below:

"Contemplating divorce or already engaged in one? No matter where you are in the process, five common sense rules apply to all family law cases:
Don't underestimate the fury of a scorned spouse.
" 'Heaven has no rage like love to hatred turned. Nor hell a fury like a woman scorned.' Anger, jealously and feelings of betrayal inspire the need for revenge. A divorce premised on the need for revenge will be costly (economically and emotionally), bitter and damaging to all.
You can listen to your friends, but maybe don’t pay attention to them.
"Divorces are fact specific. The facts of your case are different from your neighbors your friends, and your co-workers. The facts of your case will determine the outcome. So, when a client tells me that 'My hairdresser said that I should do. . . ' or that 'I am entitled to. . . .' I try to find out when the hair dresser started practicing law. By analogy, I don’t tell my mechanic how to fix my car.
Don't write or say anything that you don't want to be read or heard in court.
"Social network postings, pictures, and even causal asides will be used against you in a contested divorce or a custody fight. Your own words could be the strongest evidence against you. If you don’t want something to be used against you, exercise discretion and don’t say it, post it or photograph it.
Don't let any anger, guilt or remorse get in the way of a reasonable and fair settlement.
"Settlements should objectively fair, based upon the facts of the case. The emotions of anger and guilt cloud judgment. For instance, a spouse who feels that he/she betrayed the other by having an affair, may be willing to 'give away the farm' to satiate feelings of guilt. On the other hand, the betrayed party may have a knee jerk reaction rejecting a fair settlement offer because it does not provide for loss of the other’s body parts. Accept the advice of your attorney and financial advisors in order to resolve your case.
Hire a lawyer who practices matrimonial law, not someone who handles divorces only occasionally.
"Due to the complexity of the issues involved in the dissolution of a marriage, ranging from the valuation and distribution of assets to the custody and care of children,you should seek representation from an attorney well versed in this particular area of law, not from someone who dabbles."
Needless to say, divorce has serious consequences. Unfortunately, some people don't consider the long-term effects of what they do and say during a divorce. It is easy to give in to emotion and act irresponsibly in stressful and uncertain times. Instead of reacting quickly and in anger, it is much better to stop and consider your choices and act in ways that will reduce the fighting and put you in a better position to get a good resolution. In other words, stop, think and avoid the temptation to gain temporary, but immediate gratification. Consulting with your attorney before making important decisions is a good way to avoid creating bigger problems.

Saturday, October 16, 2010

The Top 10 Reasons Why People Don't Hire an Attorney

Many people facing difficult decisions have a hard time making the decision that they often know, down deep inside, that they need to make. Some people, at the beginning of a divorce or other family law issue, face that dilemma. Intellectually, they know what they need to do -- get started. They also know the first step is to hire an attorney. But, for a variety of reasons, they may have a really difficult time taking that step.

The following are 10 common reasons that people will use to convince themselves, or to give permission to themselves, to delay hiring an attorney. They know that once the attorney is hired, the process will begin. It's sometimes hard to face the changes that will follow, so they take the "easy way out" and put off the decision. If you are in that limbo, check the list here to see if any apply to you as you mull over your options and decide whether to hire an attorney.

1. You have now calmed down after you had gotten very upset following a discussion/argument with your spouse. It is a good idea to make important decisions when you are calm and rational, instead of while you are in the heat of a battle. Maybe it would have been a bad idea to start a divorce. On the other hand, you can think through a decision and carefully weigh the issues, looking at the pros and cons of different courses of action. If you decide against legal action after careful thought after you have calmed down, that likely is the right decision for you.

2. It could be a situation where someone else was pushing you to get started and they are not around now. Everyone has well-meaning "advisors", usually family and friends, who are willing to advise you and try to help you manage your life. Sometimes, without their encouragement and support, it's easy to change course and not do what you probably should be doing.

3. A very common affliction for people needing to make major decisions is procrastination. It seems like some people procrastinate more often than others, but everyone will put off difficult or momentous decisions at one time or another. Sometimes people get caught up in trying to gather all the information they can before deciding or they may come up with other reasons. Get help, if you need it, but make a decision.

4. Some aren't sure what they want to do, so they just want to think about it some more. That may be a form of procrastination, but it can be for other reasons. Leaving a marriage is an emotional decision as well as an rational decision. If a person has not reached the point of deciding that there is no hope for marriage, for example, it is very hard to take the step of hiring an attorney. This is a situation where the person may have to wait a little while and work through the emotions.

5. You can't get off work or you're sick or you have a sick child or other family member. Those are just excuses. You can figure out how to get off work. A sick person will get well or will improve to the point where you can take time away from them, or you can get someone to temporarily relieve you.

6. You don't want to be the one to file first. That is an important decision for some people. They are usually not aware of the fact that there are some advantages in court for being the one to file first. You should consult with an attorney and determine whether the advantages are important enough to you to go ahead and file.

7. You don't think you can get the money together to file. That can be a realistic consideration because attorneys can't work for free. On the other hand, different attorneys charge different retainers and hourly rates. Some may charge flat fees, although flat fees are not bargain rates or cheap -- they are just predictable because the attorney sets the total fee at the outset. The attorney may look over your situation and figure out where your fees can come from. Judges in Tarrant County divorce cases are pretty good about equalizing the fees available to each party. Don't let your perceived lack of funds keep you from talking to attorneys.

8. Your spouse said s/he would try to work out things with you informally or would s/he would "change" and the problems would go away. Maybe those things will happen, and maybe not. It's still best to have an attorney working with you to protect your interests.

9. You're not sure your family will want you to do this or you don't want to look bad to them. That could happen, but your family isn't the one living with your spouse or experiencing the problems you are experiencing. Your family probably doesn't know all the nitty-gritty details and they don't have the same consequences you see.

10. You trust your spouse and believe s/he and her/his attorney won't take advantage of you. Sometimes that works out, but why risk it? Your spouse, and especially her/his attorney, will understand your desire to have someone on your side. If they act upset, chances are they were planning to take advantage of you.

The bottom line is that if you are facing legal action for a divorce or other family law matter, you should consult with an attorney right to learn about your legal rights and opportunities and to discuss possible legal strategies. It is much better to plan ahead and be prepared. I have had people come in a month, two months or six months before filing, and they leave feeling better because they understand what's going on now and what their options are. You should meet with an attorney whenever you are in a similar situation.

Hopefully, this will provide some encouragement so that people will feel strong enough to take the step that will help them in the long run.

Thursday, September 23, 2010

Gay Adoption -- Not an Issue in Texas?

A recent court decision in Florida has highlighted an issue that could be coming to Texas. As reported by NPR, the court found that a Florida statute prohibiting gay couples from adopting children was unconstitutional. In Florida, gay couples can be foster parents, but they were unable to legally adopt simply because of their sexual orientation.

Texas does not have a similar statute. There is no such automatic disqualification from adoption because of sexual orientation, but a judge in Texas might disapprove of such an adoption for reasons relating to the "best interests of the children".

It is possible that the Texas Legislature might try to outlaw gay adoption, but they don't need to now and there are certainly budgetary issues to be resolved next Spring, so it is unlikely that such a law will be passed in Texas in the next Legislature. It's likely that the Florida case will go to the Florida Supreme Court and could end up in the U.S. Supreme Court, so we will have to wait for the final word on the issue until the appeals end. In the meantime, don't expect much activity on the issue in Texas.

Thanks to Harry Tindall of Houston for the tip about the Florida story.

Saturday, August 14, 2010

Divorce Insurance -- What Will be Next?

James Gross, who writes the Maryland Legal Crier blog, always comes up with interesting posts, and the following is one of the best. Here is a recent post by James:

"Want to buy some divorce insurance? Jennifer Saranow Schultz reports in the New York Times that SafeGuard Corp. of North Carolina is offering the world’s first divorce insurance called WedLock. For each $15.99 per month you pay, you can buy $1,250 in coverage. The benefit covers the costs of divorce such as lawyer fees or setting up a new home.

"Then, if you get divorced, you send Wedlock proof, and they’ll send you a check for the amount of insurance you purchased. You have to be married at least four years, however, before the payout. You can buy riders to shorten that to three years or get your premiums back if you don’t make it that long. Every year the company automatically adds another $250 to the coverage for each unit you buy.

"The company helpfully provides calculators on its site for Divorce Probability and Divorce Costs to help you figure out much insurance you need."

I don't know if the company is any good or if the insurance is worthwhile, but it's fun to use the calculators. You can do the calculations from your point of view and from your spouse's point of view. If you accurately record how your spouse would respond on the questions, you might be surprised at the difference in scores. It might get you thinking about things.

Since we now have these tools to predict the future, maybe someone will come up with a test you can take so you can learn how to correct your mistakes and fix any problems in your marriage. We can always hope!

Saturday, August 7, 2010

How to Be Alone During Family Transitions

As Monty Python used to say, and now for something completely different. Today's post is not "legal" information. It's more from the "counselor at law" portion of my work.

Aside from the changes in your legal status, divorce brings a lot of emotional changes and most people have to learn how to start over in some ways. A problem I have seen over and over, with all kinds of clients, is the rebound relationship. Some people have trouble being alone and not being part of a relationship.

I recently saw a video poem about being alone and I thought it had a lot of good ideas. If you are experiencing a change in relationships, the following video might be very helpful for you.

Hopefully, the video will help with those times when your spouse or significant other, or your children, are not around and you are alone. It is just temporary, but it can be difficult if you are not prepared and you aren't used to being alone.

I thought the video was excellent -- let me know what you think.

Sunday, August 1, 2010

How to Speed up Your Divorce

One of the most common questions clients have for their attorneys is how to speed up their divorce or other court case. This is very understandable since a family law case is usually unpleasant, expensive and slow-moving. It would be nice if there were some quick, easy answers to help speed things up. Unfortunately, there's no easy solution. However, even though there are no guarantees, but here are some things you can do to help the process.

  • Be agreeable. That includes trying to be agreeable on issues, plans and solutions. Remember that you can't make the other party be reasonable, and let's not even think about "fair" (fair is in the eyes of the beholder). You should do your best to adapt and compromise. If you can't agree to what the other insists on, you should probably just plan to wait for the court date in the future.
  • Be available. Make this case your priority and work your schedule around the court. It may not be convenient, but you may have to be inconvenienced if you want to speed up the process. Part of this is getting your preparation done in a timely manner so that you and your attorney can be ready for discussions or court. If you want your attorney to do all the work, it will cost you more time and money.
  • Avoid fights with the other party. In a family law case, each side usually knows what will set off the other party. Honestly, you may feel some spark of vindication or something else if you take advantage of an opportunity to say something or to respond to provocation from the other side, but those exchanges usually escalate and the result is anger which makes it hard to settle the case. No settlement = a slower process. You can choose between fleeting gratification or a faster way to end the case.
  • Figure out what motivates the other side and try to accommodate it. If you can come up with an agreement that meets the needs of the other side, you have a much better chance to achieve a quick resolution. Both sides always evaluation a proposal in terms of "what's in it for me?". If there's nothing, there's no agreement and you end up waiting for court.
These suggestions may seem very simple, but it's amazing how often people do just the opposite. If the suggestions don't work, there's still one more thing to do.
  • As a last resort, set court dates. As much as I hate to recommend it, sometimes you have to have a deadline to force the other side to act. You can schedule various steps along the way to increase activity: temporary orders hearings, modification hearing, enforcement hearing, etc. Sometimes, you can get agreement finalized just by getting everyone to the courthouse on some small aspect of the case.
Caveat: You should avoid letting the other side know that you are anxious or desperate to get the case concluded. If they find out, it gives them a huge edge in negotiating because they can hold out for more and you will need to make concessions to get an early agreement. Be sure to keep a poker face as you try to speed things up!

Thursday, July 22, 2010

Temporary Restraining Order (TRO)

In Texas, our Family Code provides standard language for restraining orders that can be requested and served on parties at the beginning of a divorce. To a layperson, the language may seem harsh and even accusatory. Parties who get served with a restraining order often read a lot of details into it and make a lot of assumptions. In the court system, however, little significance is attached to it.

A very common procedure is for a party to file for a divorce and request a temporary restraining order (TRO) and an order setting hearing. In some counties in Texas, there's an automatic order that goes into effect immediately against both parties (it's made "mutual"), to preserve the status quo. In Tarrant County, we don't have that immediate "standing order", but judges routinely grant TROs and then make them mutual at the first hearing date. In other words, the TRO is effective against the party who gets served with it, beginning with the time of service, and then the same language is normally applied against both parties when the judge starts making temporary orders.

Sometimes parties served with a TRO are worried that they have been accused of a wide range of bad acts. That's not the case. A TRO is just an example of a fairly common approach in the law that says "Don't do these things", without saying "I think you did these things in the past". TROs are routine and courts don't put any significance on them as far as proof, or even accusations, of past acts.

It's really like everyone is starting with a clean slate and the judge says to leave things as they are and don't do anything to harm the other party.

Bottom Line: Don't sweat it if you get served with a TRO. Take it to your lawyer and go over the details so you can comply with it in the future. Your reputation is still intact.

Thursday, July 15, 2010

Who Should I Bring to Court?

Most non-Collaborative Law divorces in Tarrant County start out with a temporary hearing right away after the other spouse has been served with papers. Depending on what the issues are for court, you may feel the need to bring witnesses, especially if your close friends and family suggest it to you.

While witnesses are sometimes necessary, too much of a good thing can be bad. Here's a way to approach the decision on who should attend:

First, ASK YOUR ATTORNEY! It's not good to just surprise your attorney by bringing a whole crowd of witnesses and supporters. It's also not good to do nothing and not tell your attorney who you can bring. There may be some witnesses your attorney would appreciate knowing about, so discuss the facts and possible witnesses with your attorney, and then follow your attorney's advice on who to bring.

Second, bring people with personal knowledge of relevant facts who have been approved by your attorney. The witnesses, as much as possible, should be unblemished citizens of high character. If some of your witnesses have little "issues", you should inform your attorney well in advance. You might also vet your witnesses by looking them up on FaceBook, My Space and Google. Check their postings and pictures for embarrassing details. Print off what you find.

Third, don't bring the kids unless the judge has specifically requested it.

Fourth, don't bring a huge group of witnesses and supporters.
The judge does not count the supporters for each side and make the larger group the winner. A big group is disruptive and can be loud. You don't need to have a lot of people showing up and giving you advice all day at court. You just need to work with your lawyer.

Fifth, bring all necessary documents that you have. Telling the judge that you can go home or go to your pick up to get the records won't help. The only thing that counts is what is presented in court. As the Scouts say, Be Prepared! Bring whatever you may need and share it with your attorney.

Your day in court will be a lot easier if you discuss your questions, especially ones about witnesses, in advance with your attorney. Good luck!

Thursday, July 1, 2010

Tips for Avoiding Holiday Explosions

Traditionally, holidays present an opportunity for family fun and relaxation or for conflict. Families tend to create their own hierarchy of preferred holidays. Work and vacation schedules have a major influence on whether certain holidays are important or not for a family. Once there is a divorce or a court order to manage child possession schedules, conflicts sometimes surface.

Court orders tend to create some arbitrary divisions of holidays, and sometimes that's the best approach because the parties just will not agree on anything. In a more mature environment, however, there are ways to minimize the conflict. With the 4th of July approaching, here's some tips to keep in mind to help maintain a peaceful holiday.

  • Plan ahead. If you can work out plans well in advance, that will reduce everyone's stress. Waiting until the last minute probably means that plans have already be made by everyone and that someone will be unhappy about changing. While you may not be able to plan ahead all the time, it's always a good idea to start weeks or months ahead of the holiday. It will be easier to coordinate schedules and activities and to come up with alternatives.
  • Keep things in perspective. Remember that holidays come around every year and that it's often easy to have family events on nearby dates, if the holiday "belongs" to someone else this year.
  • Communicate. There are often ways to work things out if everyone can just talk directly -- and nicely. Don't make assumptions about what other people are doing or about their motivations. Sometimes people get all upset thinking about something when the issues could be worked out by a discussion.
  • Be respectful. No matter who has primary custody or what label is attached to a party, think about how you would like to be approached. Making demands or criticizing the other parent (or their family) or whining are not winning strategies. If you want a favor, be humble.
  • Think about the kids. This shouldn't be a contest of wills between two adults. It shouldn't be a question of who has the superior "ownership" of a time period. Hopefully, any special requests made will really be a benefit for the children. If the parents will analyze the situation in light of the children's best interests, many fights can be avoided.
Reasonable parents should be able to work out conflicting holiday schedules if they approach the other parent as they would want to be approached. Keeping these suggestions in mind should give parties a good chance of resolving scheduling issues before the fireworks really begin!

Friday, June 18, 2010

What are Your Options to Resolve Family Law Cases?

When suddenly (or even gradually) faced with the prospect of a divorce or other major family change, many people begin to wonder what their options are. It is a very common question I hear from prospective clients. Very simply, there is a range of methods that can be employed to resolve family law matters.

Kitchen Table. In some cases, spouses can sit down together and work out agreements on all major issues on their own. Those cases involve relatively mature and intelligent people who are beyond the anger stage of the divorce process. It can be a great way to resolve issues while maintaining family relationships.

Mediation. In California and some other states, it is fairly common for the parties to go to a mediator without using attorneys and work out an agreement. In Texas, that rarely happens, but we use mediation in virtually all non-Collaborative divorces. It usually takes place after some court hearings and the completion of discovery (the exchange of information). Each party attends with an attorney and it is a very effective process in most cases.

Collaborative Law. When both parties want to try this, it can be an excellent method of reaching agreements. The parties agree to not go to court and work toward an agreement by having a series of face-to-face meetings with the parties, attorneys and other professionals. See my other blog for more information.

Arbitration. Although this is not very common in Texas, it can be a means to avoid the delays of the court system. A hired arbitrator hears testimony, reviews evidence and rules on contested issues. It can be expensive, but it is relatively quicker than a litigated divorce and might be cheaper.

Litigation. This is the most commonly used process in Texas. One side files for a divorce and usually serves papers on the other party. A temporary hearing is usually held to set up orders for while the divorce is pending. It usually takes about a year to get a contested divorce in Tarrant County. It often is resolved through mediation, but that most often occurs late in the process.

If you need to resolve a family law issue, you should think about and research the above approaches and then talk with a lawyer to get advice for your specific situation.

Thursday, June 10, 2010

Do You Need a Lawyer for Mediation?

The Jacksonville Divorce Lawyer Blog recently asked this question in the context of a Florida divorce. Their answer was the same as ours: legally, you aren't required to have an attorney for mediation, but you really should have one with you. As they pointed out, there are several important functions an attorney will carry out for you. Here are some of their ideas, with some of mine, for what an attorney brings to mediation:

Give you an overview of the process. There are different ways to conduct a mediation and a Tarrant County divorce lawyer can tell you how mediation is normally practiced here. The process may be followed a little differently in other areas of the state.

Help you select an appropriate mediator. Just like everyone else, mediators bring different experience, knowledge and personalities to the process. To put it another way, "one size doesn't fit all". It helps to have an experienced attorney who knows the mediators in Tarrant County who can help you choose the best mediator for your case. That decision alone can have a dramatic effect on your case.

Help you create and understand your options. Part of the mediation process is developing and evaluating options for settlement. An experienced family lawyer can help you create and select appropriate solutions.

Be a legal advisor. One of the primary roles of your attorney is to explain the law to you and answer any questions you have about how the law applies to your case.

Help you evaluate the offers on the table. Your attorney will ultimately have to give you advice, based on the attorney's knowledge and experience, about the advantages and disadvantages of any offers of settlement that you make or receive. The decision on whether to make or accept an offer always belongs to the client, but it's a good idea to consider the advice of your attorney. Lawyers typically look for what can go wrong with a deal, and that's a good thing to listen to when you may be anxious to settle.

Thus, while you can technically go to mediation without an attorney, you are better off having an experienced Tarrant County attorney to help you prepare and then to go through the process with you.

Tuesday, June 1, 2010

What Personality Style of Attorney Do You Want?

It is a fact that every attorney is different from all other attorneys. This is obvious for people who have frequent contact with attorneys. There are differences in knowledge, experience, temperament, interest, connections, confidence, age, reputation, and on and on. On top of the unique characteristics of each attorney, there is the consideration of chemistry. When people look for an attorney, they need to meet with the attorney and get to know him/her. Clients need to make sure there's a good connection on multiple levels.

One of the factors that is often overlooked is how decision-making is shared between attorney and client. Just as in other facets of the attorney-client relationship, there are a variety of approaches. Here are some common ones, from my observation.

Paternal/Controlling/Directing -- Strong, experienced attorney who makes the decisions and then tells the client what to do. These attorneys often feel that it is their "duty" to tell clients what to do, even if the client wants something very different. This is a fairly common approach. The attorney doesn't need to consult with the client to find out what the client wants to do or not do. What often happens, if the attorney finds out the client's feelings, is that the client's wishes are often overruled by the attorney. Sometimes that creates friction between attorney and client. Other times a client feels well protected and cared for. Either way, the result is often a more protracted court case and higher attorney's fees.

Avenging Angel -- Defender of a client perceived by the attorney to be weak and unable to defend her/himself. This is usually a "light" version of the Controlling attorney. Here, the attorney guides and directs the client, but is willing to jump in and make decisions for the client who the attorney believes is incapable or ineffective in looking out for the client's own best interests.

Mouthpiece -- Speaks for the client using the client's words; little input from the attorney. Whatever the client wants, the attorney will advocate it, even if the attorney knows or should know that the action will be counterproductive. This attorney sees him/herself as standing in the client's shoes, doing what the client wants to do, but doing it better -- following the proper legal channels.

Partnership -- Fairly equal participation. This attorney becomes an ally and often is not very objective. The attorney will listen to the client and discuss what the client wants and needs. They will often talk strategy and the attorney explains things to the client, allowing the client to have some input in decision-making.

Goal-focused Facilitator -- Tries to work at a higher level, focusing on what's truly important to the client; gives pros and cons and lets the client make the decision. This attorney works to create an informed and empowered client.

Some attorneys are aware of what type of attorney personality they have, but many are not. Those who are unaware simply believe, based on what they were taught or observed, that their style is the only way (or best way) to practice law.

Some attorneys will switch from one style to another, depending on the circumstances and the personality of their clients.

What should you do about this? Before you meet with an attorney, try to find former clients and others who know the attorney whom you can talk with. When you are interviewing an attorney to hire for a case, ask questions about how the attorney views his/her relationship with the client and listen carefully to how the attorney describes his/her actions in prior cases. What you are looking for is someone you are comfortable with. There's no single right answer for everyone. It's usually best to follow your gut instinct as you decide whether the chemistry is right when choosing your lawyer.

Monday, May 24, 2010

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.

Thursday, May 13, 2010

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.

Sunday, May 9, 2010

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.

Monday, May 3, 2010

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.

Friday, April 30, 2010

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.

Thursday, April 22, 2010

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.

Thursday, April 15, 2010

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.

Friday, April 2, 2010

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.

Wednesday, March 24, 2010

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.

Wednesday, March 17, 2010

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.

Sunday, March 14, 2010

The Unhappiness Gap

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

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

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

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

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

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

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

Thursday, February 25, 2010

5 Tips -- If You Think it Will be Amicable

Many people contact me and say they want to have an amicable divorce or child support or visitation modification agreement. They understand the benefits that come from avoiding the negativity that often accompanies litigation. They don't want unnecessary work done and want to hold down the financial cost. Truth be told, they would probably prefer to have just one attorney represent both parties, but I always explain that can't be done. (It would be a conflict of interest for the attorney and it would violate our disciplinary rules.)

Generally, the best way to have an amicable legal proceeding is to use Collaborative Law. That process keeps the parties out of court, provides the means for thoughtful and creative decision-making and utilizes the tools necessary to accomplish the objectives of the parties. Each party would have his/her own attorney (trained in Collaborative Law), but the attorneys are focused on reaching an agreement that meets the needs of both parties. The attorneys are not concerned with following all the traditional steps of discovery, pretrial motions and hearings, depositions, etc. that are expensive and often are used to just wear down one of the parties. The Collaborative process involves gathering information informally, but using experts to help evaluate it, and then going through a brainstorming process that is effective in developing options and allowing the parties to come to agreements on their best outcomes.

Unfortunately, Collaborative Law isn't always an option. The most common reason, for now, is that one of the attorneys is not trained in Collaborative Law. Sometimes, one of the parties isn't convinced that Collaborative is the way to go. Whatever the reason, the parties in a family law matter sometimes want an amicable process, but don't utilize Collaborative Law. For that situation, I have the following five tips to help them work together peacefully and effectively.

1. Be prepared by gathering needed information. If this is a divorce, make copies of the essential financial records. I don't suggest that you grab and hold all the financial records. That would be taken as a sign of an uncooperative attitude, even if you really intended to share the information. In non-divorce cases, there will be other information needed, such as income and expense records, school records, health records, etc. It will save time later if you gather up the needed information early on.

2. Choose your attorney carefully. You should probably explain what you want to do and make sure your lawyer is comfortable with that approach. Some lawyers insist on following the same game plan for every case, even if you don't want to take certain steps. If you don't feel like the attorney will do what you want done, then talk to other attorneys. There are plenty of good attorneys and you should only hire one who fits your needs.

3. Expect difficulties. Remember that even if both parties say they want an amicable case, there will still be disagreements. There can be amicable disagreements that can be resolved when there are attorneys (and maybe other professionals) who are skilled negotiators. What you want to avoid is working with someone whose answer to conflict is, "If they won't do what we want, we'll just take it to court and let the judge decide." That's not amicable and that's probably not what either party is looking for. There are plenty of ways of resolving difficult questions without going to court, if your attorney is willing to work on it.

4. Be willing to accept helpful suggestions from your attorney. I have had people come in and tell me that they have everything worked out and they just want me to prepare a document for them. I can do that, but I feel compelled to point out problems and potential issues whenever I spot them. Attorneys will make suggestions for slight wording changes that can clarify an order and help avoid confusion and conflict later. Attorneys can sometimes point out potential tax or financial issues and help you save money and avoid problems. Attorneys often know of ways to do things to more easily accomplish what you want done. You should listen to your attorney and be open to considering implementing his/her suggestions.

5. Don't let the attorneys pressure you into using the standard ways of doing things unless you completely agree. This is the corollary to point #4. You need to listen to the attorneys, but sometimes you should disagree. Doing something just because it's the standard way of doing something is not good enough. The attorney should be able to explain better reasons or benefits for any proposed changes.

If you follow these five tips, you should be able to work out solutions amicably in family law matters. Keep in mind the possibility of using Collaborative Law to get the best results.