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.