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.

No comments: