Tuesday, May 26, 2015

Tuesday Tips: How an Attorney Helps in Mediation

Mediation is a great process for resolving disputes. I'm not neutral on the topic because I am also a mediator, and I have been promoting mediation for over 20 years.  It's a peaceful way to resolve cases and the parties usually come out with agreements they are satisfied with. 

One of the reasons why mediation can work is that the mediator is strictly neutral.  The mediator must avoid taking sides, but that also limits the amount of help a mediator can provide to a party in mediation.  One of the mediator's chief  roles is to keep the parties talking. The mediator is not there to suggest solutions.  Those come from the parties or their attorneys.

I have participated in mediations where there were attorneys for both parties, where neither party had an attorney and where only one party had an attorney.  Generally, the best results come where both parties have attorneys.  The most difficult cases are usually the ones where one party has an attorney and the other party does not.  In that situation, the represented side has advantages in knowledge and skill in negotiating (unless the attorney does a poor job).

How does an attorney help in mediation?

  • The attorney can understand the issues and the law.  Sometimes, unrepresented parties want to argue about non-issues or may want to do something that is impossible to do.  An attorney can help a client understand what issues need to be addressed and what possible solutions are.  If a client wants to do something that can't be done, the attorney can present some alternatives.
  • An attorney makes sure issues aren't overlooked.  A party may be unaware of some issues and they might not get discussed if there's no attorney on the case.
  • Unlike a mediator, the attorney is not neutral.  An attorney can tell the party that something won't work or is a bad idea.  An attorney can suggest better ways to do things.
  • An experienced attorney is generally an experienced negotiator.  (From  my perspective, an attorney-mediator is an even better mediator.)  Mediation is so ingrained in Family Law now, attorneys have to learn and practice negotiation skills all the time.  Having an experienced negotiator can lead to a smoother process and better results. Knowing when and how to bring up some issues can make a huge difference.
One of the smartest moves you can make is to hire an attorney before you go to mediation. If you are not yet represented and are facing mediation, do yourself a favor and find an experienced negotiator-attorney to help you. You will appreciate the help.

Tuesday, May 19, 2015

Tuesday Tips: Help Your Attorney Help You!

In every divorce, there are financial issues.  They may be about a home, investments, a business or businesses, retirement assets, bank accounts, employment benefits, debts or taxes, among other things.  Dividing assets and liabilities is at the heart of every divorce.  Some cases are more or less complicated than others, but finances are always involved.

In addition, when there are children, child support is often a consideration and that brings up the income of each party.  You will need pay stubs, tax returns and a monthly budget.

All of that means when you are getting divorced, plan on gathering and producing financial records for your attorney.  Those records are generally going to be shared with the other side, either voluntarily or in response to formal Discovery.  You will need bank and credit card statements, retirement account statements, mortgage statements, investment records and probably many other records.  Your attorney can tell what will be needed.

The sooner you provide financial information to your attorney, the sooner your attorney can understand the marital estate and start helping you meet your needs and interests.

Remember, there's no 50-50 rule in Texas for dividing assets.  You need to think ahead and decide what you want to end up with.  Your attorney can try to help you achieve you goals if the attorney knows your goals and needs and if you have provided the information the attorney needs.

Sometimes you may not have access to all or some of the financial information.  Your attorney can request that information from the other side, but you need to give your attorney some information to know what to look for and ask for.

Be an active partner in your own divorce.  Help your attorney by providing financial information as soon as possible!

Tuesday, May 12, 2015

Tuesday Tips: Don't Try to Do-It-Yourself Without Your Own Attorney!

In these days with a contagious "do-it-yourself" attitude about so many things, many people have taken that approach to getting divorced.  That may be a mistake, unless it is a very short marriage, with little or no assets, and no kids.

Part of the motivation is to save money.  That's understandable, but keep in mind that you don't have to hire a high-priced lawyer to get good representation.  For smaller estates and parent-child issues, and even for more complicated estates,  younger, less-expensive attorneys can be fully capable of providing quality representation for you.  Just because an attorney charges a higher fee, that doesn't guarantee quality and doesn't mean that attorney is a good match for you.

So you can hire a good attorney and not break the bank. Should you hire an attorney or just go all out to save the money and do it yourself?

If any of these conditions exist, you should probably have an attorney assist you in resolving your divorce:
  • You have children with the spouse.
  • You or your spouse have retirement assets.
  • You have investments.
  • You have a house, with positive equity or negative equity.
  • You have significant debts.
  • You have been married for at least several years.
There are many different ways to handle those issues and you may not even realize the significance of some matters.  There are lots of rules in Family Law. It may not be easy to translate your ideas into legally-acceptable court orders.  If orders aren't drawn properly, they may not be enforceable.  You may lose all rights to some things if you don't deal with them correctly.

Don't assume that common sense applies to the law.

At the very least, you  should have a consultation with an attorney (or several) to check out your options and what their consequences are.  It may save you money in the long run.

Tuesday, May 5, 2015

Tuesday Tips: Don't Contact the Attorney General Without having Your Own Attorney!

In Texas, and many other states, the state Attorney General is very involved in collecting child support.  This activity is a result of a number of federal statutes that have given the AG the power to take various actions to assure that child support is being paid and is paid in the proper amount.

Although the AG technically does not represent either parent in child support matters, they are hardly neutral.  In reality, the parent receiving child support has a strong ally in the AG.  Their interests tend to coincide.
In addition, the Attorney General has certain responsibilities, ordered by federal and state laws, that they follow up on in most cases.  They often follow predetermined steps when a case is opened up.

Over the years, I have had several clients come to me after their contacted the AG on their own or responded on their own when the AG contacted them.  They came because there were problems.

Here are some potential problems when the paying party goes to the Attorney General:

1.  You probably don't know what you are doing, while the AG knows the law, their regulations and their procedures.  You may agree to something without knowing the consequences. Or, because no one was looking out for your interests,  you may not do something that you could have done to help yourself and save yourself money.
2.  When you go to the AG for help, they will probably open a file, but  they won't necessarily help YOU.  You are not their client.  They are not neutral in a helpful sense to you.
3.  You can start a chain reaction of events that leads to the opposite result of what you were seeking.  For example, your child support could be increased, you could be found in contempt and you might end up paying your ex-spouse's attorney's fees and costs.

The safest course of action is to spend a little money up front, have an attorney review your situation before you communicate with the AG. Then use your attorney if you take action regarding the child support.  Don't depend on the Attorney General to help you.  It's not their job.