Sunday, December 1, 2019

Are You Really Saving Money by Not Hiring an Attorney?

Sometimes there are good reasons to not spend money. Maybe you don't have much money available. Maybe you are worried about the total commitment once you start spending. Maybe you think it is unnecessary to spend the money.

For important matters, the reasons to spend should outweigh the reasons to not spend. That's not always the case, however. 

If you are facing a divorce or other legal issue, the possible outcomes are so serious you should usually go with the option to hire an attorney for help.

In weighing things to make that decision, maybe you should consider, "what can go wrong" if you don't work with an attorney.  Let me list a few ways.

1.  Your Petition could omit an important issue. It might be retirement, real estate or separate property. Those can be significant factors and could cost you a lot of money.

2.  The Decree could omit something. It might be payment of medical bills, support start dates, assets or many other things.

3.  You might give up more than you should. You might divide your separate property. You could agree something is your spouse's separate property when you don't need to. You might give up retirement earned before or after the marriage, and that's not necessary.

4.  You might trigger tax consequences you did not expect.

5.  You could lose your homestead rights if the real estate is not handled correctly.

6.  Alimony might be omitted even when it is needed and justified or you might pay too much for the circumstances.

7.  You might not get a proper order dividing the retirement accounts.

8.  In negotiating, you might cut off the community estate too soon and lose out on property.

9.  You might end up negotiating without sufficient knowledge of the facts, possibilities and common terms for settlement.

10. Negotiations could turn into a protracted battle with your spouse, a very unpleasant and unproductive situation for you and your spouse.

These are common situations for people representing themselves. They are also very avoidable. These are matters that could impact the rest of your life, including your retirement years. Wouldn't you hate to look back later and wish you had worked with a lawyer to get a better deal?

This is not like the old commercial with the tag line, "Pay me now or pay me later". Here, it's closer to "Pay now or lose out forever.".  You can't undo the property division terms of the divorce decree.

You need to do it right the first time.  On legal matters, you should consult with an experienced attorney to learn the issues and plan your strategy for the best possible outcome.

Tuesday, October 1, 2019

I Don't Want to Use Mediation!

Both kids and adults usually don't like to be forced to do something they don't want to do. If you're an adult dealing with children, you know sometimes you need to force the children to do things that really are beneficial for the children.

That happens all the time for adults going through divorce. Your attorney or the court or the other attorney may tell you that you have to do certain things you don't really want to do.

Sometimes, one of those things is attending medication. There are many objections, such as the cost, taking time off work or you "know" it won't work. But those objections are easily overruled by a court system that now favors mediation as an intermediate step before going to trial.

The simple answer is that you usually have to do mediation regardless of your preferences, but there is some good news. The process usually works. 

Here are some benefits of using mediation:

1.  It's faster than waiting for a trial date. Mediation can usually be scheduled within 1-2 months.  Trials are usually set 6-9 months out.

2.  It's usually cheaper than a trial.  It takes a whole lot less time to prepare for a mediation than to prepare for a trial. That translates into  a big savings for you.

3.  You get to make the decision. When you and the other party reach an agreement, that becomes the final agreement. If you go to court, you turn over all the decision making to the judge who may or may not like you and your ideas. Most people prefer to make their own decisions.

4.  Privacy. Many people prefer to keep their private business, including finances, out of the public view. Mediation is confidential and done in privacy, usually away from the courthouse. Trials are open to the public and you never know who may show up.

5.  Informality. Because mediation takes place at someone's office, things can be a lot more casual. You also don't have to jump through hoops to introduce evidence. You tell or show the mediator anything. Everyone is a lot more comfortable meeting informally with the mediator, rather than following standard courtroom and evidence procedures.

Most attorneys understand that mediation usually settles cases and that it is good for their clients.  Talk to your attorney if you have doubts or if you're just in a hurry to get to court. Mediation is the better path in most cases.

Thursday, August 1, 2019

Don't Rely on What You Hear

When people start thinking about divorce, they often talk with family and friends to get information about it.  Naturally, they look to people who have had divorce experience or know someone who has. That is often a mistake.

Briefly, this is why it is a mistake to rely on what people tell you.

1.  Every case is different. This cannot be overemphasized.  Normally we only get part of the story from someone else. Some facts are forgotten. The legal issues may have been different. The history between the parties may be different from yours. The attorneys may have chosen to focus on or ignore certain legal issues. The way people get along with each other and other people is probably different. The goals and needs of the parties will be different. This list could go on and on.

2.  People sometimes get the facts mixed up. Probably unintentionally, but still a problem.  The more times a story is told, the  more it changes.

3.  Often people are basing their opinions on the law from other states. Believe it or not, laws are different in each of the states. Many times people suggest a course of action that is totally inappropriate in Texas. That happens with research online.

So, what can a person do?  Simple. Talk to an experienced attorney.  If it's a divorce case, talk to a divorce lawyer. If it's a criminal case, see a criminal lawyer. If it's a probate matter, go see a probate lawyer.

The common element is: go talk to a lawyer for important legal issues. Don't gather your information informally and start off on your own.  Talk to an experienced lawyer for your issues and take the advice. You will come out ahead.

Saturday, June 1, 2019

Misconceptions about Mediation without Attorneys

In talking about options with prospective clients, I have discovered a number of misconceptions relating to how mediation works. Many people become interested thinking they can settle a divorce and don't have to pay attorneys. Unfortunately, that is not always a great bargain when people make uninformed, bad decisions for themselves.

Working with an attorney in some capacity can help avoid or minimize problems.  You can hire an attorney and have him/her represent you throughout the divorce process. You can consult with an attorney prior to mediation, or you can hire an attorney to be with you just for the mediation.

As you are deciding whether to hire an attorney, let me point out some common misconceptions I have heard about how mediation supposedly works.

1.  The mediator will listen to both of you and then recommend terms for  a settlement. No. The mediator must remain neutral. Making those decisions for you and your spouse would violate impartiality and lead to the mediator siding with one of you on some issues. You have to make your own proposals.

2.  There's little or no preparation to be done.  Actually, there's often a lot of preparation that is needed. You should gather documents, prepare charts and exhibits and outline the issues and your proposals. You need to have a clear picture in mind for what you want to end up with.

3.  The mediator will make sure you don't make any bad decisions or bad agreements. Wrong. The mediator cannot be neutral if he/she is advising you or your spouse to accept or reject a proposal. I have seen a number of bad decisions come from mediations where attorneys did not participate.

4.  The mediator can prepare the paperwork. No. Again, the mediator must be neutral. Judgment calls must be made numerous times in preparing paperwork for a divorce, and that would violate neutrality.

5.  You can change your mind later after you have agreed. Wrong. Once the agreement is written and signed by the parties, assuming it also contains the statutory warning that the agreement is binding, then the agreement is binding.

6.  You won't be surprised by facts, issues or proposals during the process. No, it happens all the time. With an attorney, you will have an opportunity to respond effectively.

7.  The mediator will make sure you don't overlook something. They cannot take on that role and remain neutral.

Bottom Line:  The 7 statements above are false assumptions made by many parties who try mediation without an attorney's help. Your divorce will have enough financial and family significance that you should hire an attorney so you can settle your case under the best terms for you.

Tuesday, April 2, 2019

How Fast Can We Finish a Divorce?

Some people come to see me and they are in a big hurry to be divorced. Sometimes, both spouses are at that point. More often, it's just one spouse and that can lead to problems (= slower divorce).

Here's the starting point.

There's a 60-day waiting period required by the Texas Family Code.  It begins the day after the Petition for Divorce is filed. That's day one.

You count the next 60 days, including weekends and holidays.

You cannot get divorced until at least the 61st day after the filing.

Another disappointment for some people: 

The divorce is not automatically granted on the 61st day.

To get the divorce granted, you normally must appear in Court with your attorney and the proper paperwork.  Your attorney will tell what he or she needs from you and will prepare the documents needed.

If you are trying to get your own divorce without an attorney, you can do it, but it will take longer. Please contact the Court Clerk for instructions on setting a Court date.

All of the above is about how fast you can be divorced. In a normal case, it will take longer than 61 days. Please talk to your attorney to find out if you can either speed up or slow down your divorce.

Bonus Tip:  If you are in a hurry to be divorced, please tell your attorney when you first talk to him or her. Then you can talk about a realistic timetable.

Tuesday, January 1, 2019

When Not to "Do It Yourself"

You may have friends who did their own divorce. You figure, if they could do it, so can you. 

Or you may think you don't have much, so why hire an attorney?

Maybe you don't like attorneys.

Maybe you don't have a lot of money to spend on attorneys.

Or you have researched online and discovered forms. You're pretty sure you can do your own paperwork and handle your own divorce for next-to-nothing.

Maybe, maybe not. While I am a divorce attorney and probably have a bias, I can tell you I discourage a number of possible clients from hiring me. I always want to be sure that the parties have tried (with professional help) to work things out. I also don't want someone to hire me if it will cause a financial strain.

Should you hire an attorney? I would say yes, if any of the following are true in your case.

1.  There is a disagreement on how to share time with the kids.  Or, where they should live or go to school.  This issue takes people to the courthouse.

2.  There are retirement assets to divide. It can be very complicated and someone may lose out on a lot of future income when they really need it. Plus, some people may not even realize what they are entitled to.

3.  If there is a house and you have to figure out how to handle some house issues:

a.  Who gets it?
b.  How much should each party get from the house?
c.  Can you get 1 name off the deed and mortgage?
d.  Does the house need to be sold?
e.  How to pay off the party leaving the house.

4.  If someone wants or needs alimony.  How much can they get and for how long? Can a spouse avoid having to pay alimony?

5.  You can't agree on the amount of child support to be paid or the non-custodial parent wants to pay no child support.

6.  You can't agree on how to divide the debt.  

7.  One party fears for his or her safety. 

If any of these issues exist in your divorce situation, you should not try to get your divorce without the help of an experienced Family Law attorney.  These are not simple issues and they can have a major impact on the rest of your life.